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 Circuit and Family Court. The Tribunal refused to release information under s 362A of the Migration Act 1958 (Cth), finding that disclosure was not permitted under the Australian Privacy Principle 6. Did the Tribunal make an error, in that the primary purpose of collecting such information was the same for which the delegate and Tribunal would have disclosed it, namely to assess whether the applicant was the sponsor's spouse?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court. Should s 347(1)(c) of the Migration Act 1958 (Cth) "be construed in such a way that where a fee reduction request is pending, there is no prescribed fee which must accompany the review application, which, in turn, must be made within the prescribed period"?

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 (Full Court). Appellant applied to FCCA for judicial review (JR) and extension of time within which to apply for JR. In dismissing time extension application, FCCA engaged in more than an impressionistic evaluation of merits of proposed grounds of review. Did FCCA make jurisdictional error by doing so? Can FCCA hear applications under ss 476 and s 477(2) together? Was the FCCA's error not material in that, had it not misconceived s 477(2), it would have decided the JR application against Appellant anyway?

Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?

Federal Court (Full Court). Can it be said that "a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1)"? Can it be said that, "where material such as the audio recording of a delegate interview is not given to the Authority, the question whether the Authority’s task has miscarried in a way which affects its jurisdiction is not decided by a technical focus on the words “possession or control” in [s 473CB(1)(c)], nor on evidence about why the material was not provided"?

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court (Full Court). Is "unwarrantable delay" a "basis upon which, in particular circumstances, any of the remedies sought by the Appellant under s 39B of the Judiciary Act might, in the exercise of a judicial discretion, be refused, in the same way in which the remedies for which s 75(v) of the Constitution provides might be refused"? May a relevant Minister "be taken to have read [a] departmental submission, especially in circumstances where he approved it, wrote brief notes upon it, and signed it"?