Case Law Updates

Federal Court: The Applicant argued that: Mr Dutton was not constitutionally permitted to make a decision by reason of not being allowed to have sat in the Parliament; the Full Court's decision in Ibrahim should be followed; the Minister's comment on radio conveyed apprehended bias. The Minister argued that Ibrahim was wrongly decided or, alternatively, that it should be distinguished on the basis that, in Ibrahim, it was the Assistant Minister who made the impugned decision.

Federal Court. On 10 June 2020, Flick J held that BAL19 was not plainly wrong and declared that the Minister's delay in deciding the Applicant's protection visa application was unreasonable. His Honour held on that date that it was unnecessary to issue mandamus ordering the Minister to make a decision within a deadline his Honour expected that the Minister would abide by the declaration and make a decision without delay. However, the Minister wrote to the Applicant as follows after Flick J's decision: "As the Minister has now appealed the judgment of Justice Flick, no decision will be made on your client’s visa application pending the outcome of the appeal. The Minister’s position is that s 501A is an available power in relation to your client’s visa application and that Justice Flick was in error in finding that the delay in making such a decision was unreasonable and that s 501A was not an available power in the circumstances of this matter. Any decision made prior to the resolution of the appeal as to whether BAL19 was wrongly decided would render the appeal moot". Can Ministers of the Crown be imprisoned for contempt of court?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Federal Court (Full Court). Does s 476A of the Migration Act 1958 (Cth) prevent "direct review" by the Federal Court of an exercise of power under s 189, including by way of an application for habeas corpus? We summarise the answer to that and 35 other questions.

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?

Federal Court. In determining whether a time extension to file a judicial review application should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?

Federal Court. Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV? Is consideration of the "national interest" under cl 790.227 "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"? May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision?

High Court. FCCA delivered ex tempore reasons to respondent, who did not speak English. The orders were translated, but not the reasons. Respondent did not receive or request a copy of the transcript of the ex tempore reasons and appealed to FCA before statutory deadline. Written reasons were delivered after such deadline, but well before FCA's decision. Are the procedural fairness requirements in the context of a particular decision directed to the process that occurs before the decision is made, but not after it? In other words, is the obligation to provide reasons related to procedural fairness requirements?

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

Federal Court. Appellant spent most of his years in Australia without working, due to injury. Did cl 14.1(2)(a)(ii) of Direction 65 require AAT to "consider either the appellant’s will to be productive"? Accepting that cl 14(1) requires AAT "to take into account matters of relevance to whether to revoke the mandatory cancellation of a visa, apart from those specified in cl 14(1)", can it be said that "the reasons for a lack of contribution to the Australian community are such a relevant consideration"? Could AAT give lesser weight to the relationship between Appellant and his daughter "because at the time of the Tribunal’s decision she was soon to turn 18"?