Case Law Updates

Federal Court. Is it "appropriate to use the shell of an old action to commence fresh proceedings including against a new party when that proceeding has been resolved"? Were answers in the form of "I don't remember" to an interrogatory administered to the Minister improper?

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court: If an administrative decision-maker takes into account facts existing at the time of decision and those facts change after a decision is made, can it be said that the decision was legally unreasonable?

Federal Court: A student visa holder was not enrolled in an eligible course and received a notice of intention to cancel his visa pursuant to s 116 for breach of condition 8516. A few days later, he enrolled in an eligible course, before the Minister made the decision to cancel his visa. Can re-enrolment cure a breach of condition 8516? In other words, does re-enrolment have the effect of ceasing the cancellation power from the moment of re-enrolment?

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. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?

Federal Court (Full Court). Can it be said that, "if it is common ground between parties that a particular fact is so, then it is a denial of procedural fairness for an administrator, for example, the Tribunal, to depart from that position without giving each party an opportunity to make submissions on that subject; in other words, ambushing by a decision-maker can amount to jurisdictional error"?

Federal Court. Is an application to set aside a notice of discontinuance filed in the Circuit Court interlocutory in nature, with the result that leave is required to appeal against the discontinuance? If so, will leave "only be granted where the decision below is both attended with sufficient doubt to warrant it being considered by a Full Court, and would result in substantial injustice if leave were refused, supposing the decision to be wrong"?

Federal Court (Full Court). This decision confirms that, when a decision-maker is balancing various factors in determining whether a criterion is satisfied and finds that such a criterion is not satisfied, the fact that it found one of those factors to go in favour of satisfying the criterion does not mean that an error in the assessment of that factor was not material to the outcome of the decision. After all, more weight could have been attributed to that factor, had the error not been made, which could have led to the criterion being satisfied.

Federal Court. Appellant had pleaded guilty to manslaughter. In personally deciding under s 501CA(4) whether there was "another reason" to revoke the mandatory cancellation of Appellant's visa, Minister found that "further" offending of a violent nature by the Appellant could result in serious physical harm to members of the Australian community. Was Minister's decision legally unreasonable in that, although Appellant's conduct led to a violent outcome (death), the nature of the conduct was not violent, as there was no intent to harm? Is a subclass 444 visa a "limited stay" visa?