Case Law Updates

Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?

Federal Court (Full Court). DHA sent visa cancellation notice on 20 Sep 2018 via email, while Respondent was in prison. Notice was handed to him on 21 Sep 2018, but stated it was delivered by email. Was such defect immaterial, as AAT calculated timeframe by reference to the latter date? Was notice defective by not specifying decision was reviewable under Part 5? Can AAT application be lodged before notice is sent? If notice is defective, does it mean there is no deadline for AAT application? Must AAT consider application without application fee?

High Court. Practitioner used written submissions deriving from a previous client as a template for submissions sent to the IAA concerning 2 other clients. As a ground of judicial review, must fraud affect a particular duty, function, or power of the IAA? If so, were they affected for either of those 2 other clients? Was the IAA's failure to exercise the power in s 473DC to get new information, namely new submissions, legally unreasonable?

A Federal Court decision on subclass 457 that might also apply to subclass 482: 'it is appropriate that the Tribunal gives consideration to the correct version of [ANZSCO]... it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision'

Federal Court: In SZSSJ: personal details of SZSSJ were unintentionally disclosed on the DHA's website; DHA refused to disclose the full content of a KPMG report on the data breach, but referred SZSSJ to an ITOA with instructions to assume that information from him had been accessed by all persons from whom he feared persecution; HCA held that even if there was a denial of procedural fairness in not disclosing the full report, that was cured by the assumption. Was the AAT in this case obliged to make that assumption?

Federal Court (Full Court). This decision confirms that, when a decision-maker is balancing various factors in determining whether a criterion is satisfied and finds that such a criterion is not satisfied, the fact that it found one of those factors to go in favour of satisfying the criterion does not mean that an error in the assessment of that factor was not material to the outcome of the decision. After all, more weight could have been attributed to that factor, had the error not been made, which could have led to the criterion being satisfied.

Federal Court (FCA). If the FCA has jurisdiction to determine a claim for damages for false imprisonment and habeas corpus on the basis that the Respondent failed to remove the Applicant from Australia as mandated by s 198, does 476A exclude the FCA's jurisdiction to entertain the Applicant’s claims for injunctive relief requiring the Respondent to discharge its duty under s 198 or to declare that the Respondent failed to comply with that duty? Can the FCA issue a peremptory writ of mandamus?

High Court. Plaintiff missed AAT deadline and thus applied to HCA for judicial review (JR). Could HCA remit matter to FCA or FCCA? Was delay of 6 months in JR application substantial? What is required for the Minister to discharge his/her obligations under s 57(2)? Although s 55(2) provided that Minister was not "required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information", can it be legally unreasonably for Minister to fail to delay?

Federal Circuit Court. Can a document that itself is genuine meet the definition of a 'bogus document' by having been fraudulently obtained?

Federal Court. On 10 June 2020, Flick J held that BAL19 was not plainly wrong and declared that the Minister's delay in deciding the Applicant's protection visa application was unreasonable. His Honour held on that date that it was unnecessary to issue mandamus ordering the Minister to make a decision within a deadline his Honour expected that the Minister would abide by the declaration and make a decision without delay. However, the Minister wrote to the Applicant as follows after Flick J's decision: "As the Minister has now appealed the judgment of Justice Flick, no decision will be made on your client’s visa application pending the outcome of the appeal. The Minister’s position is that s 501A is an available power in relation to your client’s visa application and that Justice Flick was in error in finding that the delay in making such a decision was unreasonable and that s 501A was not an available power in the circumstances of this matter. Any decision made prior to the resolution of the appeal as to whether BAL19 was wrongly decided would render the appeal moot". Can Ministers of the Crown be imprisoned for contempt of court?