Case Law Updates

Federal Court (Full Court). FCCA reserved for 5 years its judgement on an application under s 477 of the Migration Act 1958 (Cth) for an extension of time within which to make a judicial review application. Did the FCCA make a jurisdictional error by failing to take into account its own delay in determining the application for an extension of time? Can delay be sufficient to infect a judgement with jurisdictional error?

Federal Court. In circumstances where the non-citizen was convicted in Victoria, did the Tribunal err by applying Thornton and Lesianawai without giving any consideration to the question of whether there was any Victorian law that attracted the operation of s 85ZR(2) of the Crimes Act 1914 (Cth)?

Federal Court (Full Court). The appellant Minister sought to set-off a costs order made in the respondent non-citizen's favour out of a costs order made in the Minister's favour in previous court proceedings. Did the primary judge's exercise of discretion, refusing to allow the offset costs because this would discourage lawyers from acting on a conditional basis, miscarry?

Federal Court. Was the Minister “required to consider the “direct and immediate statutorily prescribed consequences” of the s 501(3) cancellation decision he was contemplating”? If so, was the non-applicability of the relevant ministerial direction (Direction No. 79) a “direct and immediate statutorily prescribed consequence” of the Minister’s s 501(3) decision that the Minister ought to have considered”?

Federal Court. In what circumstances can courts admit evidence adduced on judicial review? If the Tribunal is exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Migration Act 1958 (Cth) in respect of a decision under s 501CA(4) made by a delegate of the Minister, does s 43 of the AAT Act invest for that purpose the Tribunal with all of the powers, discretions and statutory obligations of the delegate?

Federal Court. Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information” (i.e. information that is not capable of being believed)? If so, can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?

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 (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

Federal Court. Does the "gravity of the obligation upon the [IAA] to make a determination about whether Australia’s protection obligations w[ere] engaged" inform the determination of whether the IAA's power under s 473DD was exercised legally reasonably? Was it "open to the [IAA] to have regard to the inherent implausibility of the new information when considered in light of other information already before it for the purpose of determining whether it constitutes “credible personal information”within the meaning of s 473DD(b)(ii)"?

Federal Court. Does FCA have jurisdiction to review a delegate's decision to refuse under s 501CA(4) to revoke the mandatory cancellation of a visa made under s 501(3A)? Can the self-represented Applicant's notice of appeal from the Minister's decision be treated, in substance, as: a notice of appeal from the Tribunal's decision; including an application for a time extension under s 477A(2)(a)? How should the FCA approach poorly-cast grounds of judicial review? Is the Tribunal required to conduct hearings in person?