Case Law Updates

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?

Federal Court. IAA affirmed DHA's decision and FCCA dismissed judicial review application. Appellant appealed to FCA, which heard appeal and reserved judgement on 30 May 2019. On 21 Dec 2020, Minister filed affidavit affirming that Appellant departed Australia on 13 Aug 2019, was still offshore and that his BVE ceased to be in effect. Appellant held no visa to re-enter Australia. Did Appellant abandon the appeal by leaving Australia?

Federal Court. Applicant applied to FCA for extension of time within which to "appeal" AAT decision under s 44(2A) of AAT Act. AAT had decided, based on FCA decision in Lesi, that it had no power to adjourn the review, based on s 24(6)(a) of Australian Citizenship Act 2007. Applicant argued Lesi was wrong, but conceded it was not plainly wrong. If FCA allowed extension application: it could recommend that a direction be made under s 20(3) of FCA Act referring matter to FCAFC; if that was not recommended, Applicant could "appeal" AAT's decision, in which case FCA could dismiss appeal on the basis Lesi was not plainly wrong, but he would then have a right of appeal to FCAFC anyway. If FCA dismissed time extension application, that would be an interlocutory decision, meaning Applicant would need leave to appeal to FCAFC, unless time extension application itself were referred to FCAFC under 20(3). If, on a reasonably impressionistic level, there is a serious doubt about the correctness of Lesi, would that suffice for FCA to allow time extension application and make recommendation? Or would FCA also need to find Lesi was plainly wrong? Was there such a doubt?

Federal Court (Full Court): In the context of s 501CA(4), was the Appellant's prohibition upon his ability to return to Australia by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) a legal or a practical consequence of a non-revocation decision? Was that consequence a mandatory relevant consideration? Does the process of statutory construction of the Migration Act "permit of some consequences being more immediate than others"? Does a decision made under cl 5001(c) lack "legal proximity" to decisions made under the Act? The FCAFC was divided on several issues.

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)..." Does para 14.5 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

Federal Court. Where the Minister by his or her conduct invites further submissions for the purpose of exercising the personal power in s 501BA(2) of the Migration Act 1958 (Cth), is the Minister thereafter compelled to consider that material, even though s 501BA(3) provides that the rules of natural justice do not apply to s 501BA(2)?

Federal Court. Does s 98: "extend to a visa applicant who has relied on a migration agent to complete a visa application form where the agent perpetrates a fraud on the visa applicant and the applicant wishes to establish that the visa application itself was consequently vitiated"; "fix a non-citizen with the consequences of a migration agent filling out a form with incorrect or incomplete information that may result in visa cancellation"?

Federal Court. In the context of administrative law, must a finding that there is a psychological or psychiatric condition be founded upon expert medical or psychological evidence? Was the Minister’s reference to the Applicant’s "psychological sexual issues" a "statement that involved the application of specialist expertise" or that "was not open absent a specialist diagnosis"? Can it be said that "to take account of the fact that he had received a 25% discount in sentencing from the court was to take into account an irrelevant consideration"?

Federal Court (Full Court): 'While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned'

Federal Court (Full Court). Can the Court set the amount of costs in migration litigation at a level that exceeds or is less than the scale in Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules)? If so, does the legislative scheme impose on an applicant for costs any burden to prove that departure from the scale of costs in Schedule 2 to the GFL Rules is justified or warranted? Can a successful judicial review applicant recover the filing fee, in addition to costs incurred with professional fees?