Case Law Updates

Federal Court: s 425 required AAT to invite Appellant to appear before it to "give evidence and present arguments relating to the issues arising in relation to the decision under review". AAT invited Appellant to a hearing in relation to the review of the delegate's decision to refuse him a protection visa. At the hearing, AAT put it to Appellant that there was a trend after 2013 of reduction of violence in the Appellant's country, based on some reports. Appellant had opportunity to comment. AAT's decision record relied on a subsequent report (2016 DFAT report) which confirmed that trend, but of which Appellant was not put on notice. Was the 2016 DFAT report an "issue" arising in relation to the decision under review or was it merely a factual matter going to that issue? Should AAT have convened a second hearing?

Federal Court (Full Court). The respondent was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the respondent was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the respondent failed the character test?

Federal Court (Full Court). Does the subject matter of s 501 of the Migration Act 1958 (Cth) deals completely, and thus exclusively, with the subject matter of PIC 4003(b) of Schedule 4 to the Migration Regulations 1994 (Cth), with the result that PIC 4003(b) detracts from or impairs the operation of s 501?

Federal Court (Full Court). Where the Tribunal finds that no marital or de facto relationship as defined in ss 5F and 5CB of the Migration Act 1958 (Cth) existed at any time, is the consequence that the question of family violence for the purpose of cl 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) does not arise for consideration, contrary to El Jejieh?

Federal Court (Full Court). In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415" of the Migration Act 1958 (Cth), with the result that the Minister had the power under s 417 to substitute for the decision of the Tribunal?

Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?

High Court. Is the common law presumption against extraterritorial operation more accurately labelled as a "presumption in favour of international comity"? Did the Federal Court of Australia Act 1976 (Cth) confer jurisdiction on the Federal Court? Can it be said that "Federal courts, other than the High Court, owe their jurisdiction to laws enacted under s 77(i) of the Constitution"?

Federal Court. While the AAT was required to treat offending of the type described under cl 13.1.1(1)(a)-(b) of Direction 79 as “very serious”, did it remain for it to allocate weight in respect of such offending relative to all other relevant considerations under s 501CA(4)(b)(ii) of the Migration Act? Are cl 13.1.1(1)(b) and (d) ultra vires s 499 of the Act to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?

Federal Court. Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they can cause the type of harm contemplated by cl 9.1.2(2)(a) of Direction 79? Does cl 9.1.2(2)(a) call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?