Case Law Updates

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?

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .

Federal Court. Subsection 196(4) of the Migration Act 1958 (Cth) read: "if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen". DHA cancelled Applicant's BVA under s 501(3A) and then refused to grant him a protection visa. Was he detained "as a result of the cancellation" of his visa or rather as a result of the visa refusal? Did FCA have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis on the basis that s 196(1) of the Migration Act is not inconsistent with s 23?

Federal Court (Full Court). Section 55ZF of the Judiciary Act 1903 (Cth) provides that the Attorney-General may issue "Legal Services Directions" that are to apply generally to Commonwealth legal work. Section 55ZG provides that some persons or bodies such as the Commonwealth "must comply with Legal Services Directions". Is a breach of one of those directions, the Model Litigant Principles, actionable?

Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?

Federal Court (Full Court). Did Lee seek to render the subjective intentions of a child’s parents determinative in relation to the ordinary residence of their child? If not, can it nevertheless be said that the focus in relation to the “ordinary residence” of minors is on the intentions of the parents, and that a reason for this surely was that “a child of tender years has no control over where he or she lives”?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court. As the decision that the applicant sought to compel by mandamus was made favourably to him, with the result that he obtained the practical outcome he pursued, should he be awarded costs? If so, should those costs be offset by costs which the applicant was awarded to pay in a previous court proceeding?

Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?