Case Law Updates

Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?

Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?

Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?

Federal Court. Under s 196(4) of the Migration Act, if a person is detained as a result of a visa cancellation under provisions such as s 501, "the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen". Interpreting s 196(4) in isolation, a court would have no power to make a non-final (i.e. interlocutory) order for the release of a person to whom that provision applies. However, s 476A(2) provides that, where the FCA has jurisdiction in relation to a matter, that jurisdiction is the same as the High Court's. Does s 476A(2) give the FCA the power to make an interlocutory order for the release of a person to whom s 196(4) applies?

Federal Court. Appellant's protection visa application was refused. At AAT, he claimed that, if returned to his home country, he would be homeless and destitute due to his financial predicament and would be detained as a result. Generally speaking, s 210 of the Migration Act 1958 (Cth) provides that a non-citizen is liable to pay the Commonwealth the costs of his/her removal or deportation. In determining whether Appellant would become homeless in his home country, should AAT have considered the effect of s 210, which would impose a further financial burden on him?

Federal Court. For the purpose of s 501(6)(c)(ii) of the Migration Act 1958 (Cth), can the communication of a belief, or the existence of an uncommunicated belief, be considered "present general conduct"? Further, there are 2 incidents of the common law procedural fairness rule: 1) to give an affected person an opportunity to comment on adverse material obtained from other sources; 2) to identify to them issues not obviously open on the known material. Were these incidents excluded by s 51A(1)?

Federal Court. Cl 8(3) of Direction 79 provides: "Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa". Must decision-makers make express findings on each of those considerations? When considering under cl 14.5 the extent of impediments if Applicant were removed, AAT found it "appropriate to afford the expectations of the Australian community moderate weight in favour of non-revocation", which expectations had already been considered. Was AAT allowed to double-count those expectations?

High Court (single Justice). Where an application for merits review is ongoing and yet to be concluded, is valid on its face and made within the prescribed time limit, is it an abuse of process to file a judicial review application with the High Court to review the same decision, in the absence of exceptional circumstances?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?

Federal Court (Full Court). Is the ambit of a review by the Tribunal "necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review"?