Case Law Updates

Federal Court (Full Court). For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the Federal Circuit Court to be "scrutinised narrowly and with an eye for error"? Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?

Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?

Federal Court. Could the fact that there was only one bedroom in the couple's residence be ignored by the Tribunal? If the couple was sharing a bed, did this necessarily militate "strongly against the proposition that they were merely sharing a house"? Is what the decision in He has to say about the correct approach to r 1.15A(3) about whether a person is a spouse directly applicable to the position under r 1.09A(3) for the purpose of determining whether a person is a de facto partner?

Federal Court. In Australia, it a matter of "ordinary human experience" that a copy of an arrest warrant may be left with a third party connected to the suspected offender? Are the laws of a foreign country relating to the issuance of arrest warrants a matter of "ordinary human experience"?

Federal Court (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

Federal Court. Was the day the person made an application for citizenship the day it was dispatched? Or was it made the day it was received by the Minister?

Federal Court. Could the applicant’s representations in relation to rehabilitation "be properly engaged with if he relied on evidence of having completed six separate courses (plus counselling) and the Tribunal only took account of the evidence relating to three of those courses"? In assessing whether an error is material, should it be assumed that the administrative decision-maker approached the review with an open mind?

Federal Court. Can it be said that the Immigration Assessment Authority's "statement that “there was no evidence before me” should be understood as meaning...

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

Federal Court (Full Court). Can it be said that, the Federal Court's "jurisdiction having been validly invoked, the Court had power to grant declaratory relief as an adjunct or alternative to other relief, the source of that power being found in either or each of s 23 of the [FCA Act] and s 16 of the ADJR Act, if not also the Court’s status as a superior court of record and one of law and equity"?