Case Law Updates

Federal Court. Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision? Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"? Once significant delay is established, does the evidentiary onus shift to the Minister?

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.

High Court. Is the effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt? Did s 36D(1) of the Australian Citizenship Act 2007 (Cth) purport to vest such a power to impose additional or further punishment in the Minister? If so, is s 36D invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

Federal Court (FCA). Can a court grant mandamus by way of interlocutory relief? Does the FCA have jurisdiction or power to grant mandamus compelling...

Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?

Federal Court. If a 'transitory person' who needs to be in Australia for a temporary purpose makes a written request to be removed from Australia, do they need to be removed? If so, can that person be removed to a place contrary to their wishes? Is the subjective opinion of an officer which determines the application of s 198AH(1A)(c)? Pending removal under s 198(1) or (1A), is a non-citizen to be detained?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Federal Court (Full Court). The High Court said as follows in Viane about s 501CA(4) of the Migration Act 1958 (Cth): "That scheme necessarily requires the Minister to consider and understand the representations received". Does Viane equally apply to the consideration of any material relied on by a person who was subject to the exercise of the power under s 501(1)?