Case Law Updates

Federal Court: 'if the evidentiary requirements were satisfied simply by a statutory declaration made by [a nurse], who is a non-treating [nurse], the words [under IMMI 12/116] in relation to treatment would be otiose'

Federal Court. Does the appellate jurisdiction of the Federal Court encompass an appeal from the issue of a writ of habeas corpus? Is the issue of a writ of habeas corpus interlocutory in nature? Did s 198AD(1) of the Migration Act 1958 (Cth) apply to a person who: (a) has received a favourable exercise of the power in s 46A(2); or is a “fast track applicant” within the meaning of the Act?

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

Federal Court (Full Court). In relation to the consideration in para 8.1.2(2)(b) of Direction 99, are decision-makers required to have regard to the likelihood of a 'non-citizen engaging in further criminal or other serious conduct' if they were to be granted a visa, or if their previously granted visa were not to be cancelled?

Federal Court. Does s 600(6H): preclude the Tribunal having "regard to" particular information, as opposed to the reception of that particular information and, if so, does it necessarily follow that "the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called"; "require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"; always require that prior notice of the source of the information to be presented orally be given?

High Court. Does the information to be provided in compliance with s 29(1)(c) of the AAT Act need to be information of the slightest assistance to the Tribunal or any other party to the proceeding? Is non-compliance with s 29(1)(c) intended to result in the invalidity of a Tribunal application?

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?