Case Law Updates

Federal Court (Full Court): Direction 65, which for the purpose of this decision was identical to Direction 79, required the Tribunal to take into account a number of considerations in deciding whether to refuse a visa under s 501 of the Migration Act 1958 (Cth). One such consideration was labelled the "expectations of the Australian community". Are those expectations pre-determined by the direction itself as deemed expectations? What is the content of those expectations?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?

Federal Court. In Direction 79, primary and other considerations were specified as matters that must be taken into account 'where relevant'. For the purposes of determining whether there has been compliance with Direction 79, is relevance a matter to be objectively determined? Should judicial review applicants identify particular aspects of the reasoning of an administrative decision said to be illogical or irrational and then claim that, as they were material, there was legal unreasonableness?

Federal Court (Full Court). Should decision-makers, when addressing the consideration in para 13.3 of Direction 79, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?

Federal Court (Full Court): The mandatory cancellation provision, s 501(3A), was inserted into the Migration Act 1958 (Cth) in 2014 and obliges the Minister to cancel a visa if he/she is satisfied that a non-citizen has a substantial criminal record and is serving a full-time sentence of imprisonment. "What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?"

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?

Federal Court (Full Court): Where a Minister 'relies on the assessment of a Departmental officer and an officer ... within the Department withholds ... a not insignificant part of that assessment, ... the Minister will be taken to have failed to take that not insignificant material into account'

Federal Court. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?

Federal Court (Full Court). Can it be said, based on a single judge FCA decision, that the "principles of legal unreasonableness, in the sense considered in Li, have no application in the review of a decision... as to the existence of certain facts that satisfy statutory criteria", but only to the review of a discretionary power? Summary of principles concerning review of: state of satisfaction under s 65 for illogicality and irrationality; adverse credibility findings. Can it be said that "the psychological reactions of a couple to their first sexual encounter are matters of common human experience"? Or do those reactions need to be supported by evidence such as psychological evidence? Can it be said that, "if two people give a different account of an event and the evidence of one is rejected, that does not provide a logical basis on which to reject the evidence of the other"?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?