Case Law Updates

Federal Court: IAA affirmed decision to refuse Appellant a protection visa. Appellant then unsuccessfully applied to Federal Circuit Court (FCCA) for judicial review. FCCA's decision did not publish Appellant's name, in compliance with s 91X of Migration Act 1958 (Cth), which prohibits courts from publishing names of protection visa applicants. Appellant eventually appealed to Federal Court (FCA), arguing that: FCCA had constructively breached s 91X by publishing information sufficient to identify him; that breach was an appealable or jurisdictional error "because it frustrates the scheme by rendering the IAA decision nugatory..., in that it raises a new claim for protection". Should FCA issue a declaration that FCCA breached s 91X?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court. Is it "antithetical to the appellate process [or] at odds with s 476A" for FCA to allow "a new ground not considered by the primary judge"? Further, Appellant presented his taskera (Afghan ID card) in support of protection visa application. Delegate suspected taskera was bogus and his representative provided delegate with a document from Appellant's father as evidence that Appellant's taskera was not bogus. The document the representative provided was the father's birth certificate. But representative inadvertently mischaracterised that document as the father's taskera. Given discrepancies between Appellant's taskera and his father's "taskera", delegate found the former was a bogus document. Did delegate make a jurisdictional error despite being entirely blameless? Was forensic examination of taskera irrelevant?

Federal Court. Is the materiality test question whether the result, in the absence of error, was inevitable? In assessing materiality, would a court be usurping the statutory task entrusted to the decision-maker if it formed its own view as to what the result should have been in the absence of error?

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court. The judicial review applicant rejected an offer of compromise by the Respondent in relation to costs which was as good as the result of the case. Did that rejection justify him paying costs incurred by the Respondent after the expiry of the offer?

Federal Court: when determining under s 501CA(4) of the Migration Act 1958 whether to revoke the mandatory cancellation of a visa, should a decision-maker also take into consideration the non-citizen's submissions regarding what the expectations of the Australian community are or should the decision-maker only take into consideration their own views of what constitutes those expectations?

Federal Court. In the context of s 116(1)(e)(ii), can it be said that submissions to the Tribunal, viewed as a whole, are a mandatory relevant consideration, but not every aspect of those submissions can be so described? If so, for the purpose of determining whether an aspect of those submissions is a mandatory relevant consideration, is the fundamental question the importance of that aspect to the exercise of the Tribunal’s function, which will depend on the nature of the material and the circumstances of the case?

Federal Court. The then self-represented Applicant made multiple attempts before the statutory deadline to lodge a judicial review (JR) application with the FCCA's Registry. After the last attempt, the Registry refused to accept the filing document, as it did not comply with the Federal Circuit Court Rules 2001 (Cth). Applicant eventually made a time extension application after the deadline. Before FCCA, interpreter was having difficulty understanding the Applicant. FCCA dismissed time extension application, saying nothing before it indicated it had received and refused JR application. Did the lack of a "simple inquiry of the Registry" result in the FCCA making a jurisdictional error? Was it necessary for JR application to substantially comply with the rules?

Federal Court. Should Direction 65 be read down to be consistent with the Family Law Act 1975? Was AAT required to "give weight to a right, value or interest recognised by statute, international instrument or the common law"? Is Direction 65 inconsistent with that Act? Does the Convention on the Rights of the Child inform the interpretation of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65? Is Direction 65 delegated legislation? If not, is it anyway sensible to assume it intended to give effect to Australia's obligations under international law? Is Direction 65 inconsistent with the common law principle of parental responsibility?