Case Law Updates

Federal Court. Was the Tribunal obliged under para 9.1(6) of Direction 90, in reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), to consider whether it was appropriate to assume that the ‘claimed harm’ would occur?

High Court. The Plaintiffs argued that the covid-19-related Quarantine (Closing the Border) Directions (WA) issued under the Emergency Management Act 2005 (WA) impermissibly infringed s 92 of the Constitution. The Court held that the exercise of the power given by ss 56 and 67 of the Act to make paras 4 and 5 of the Direction did not raise a constitutional question. Does this mean that the limitations imposed by s 92 of the Constitution are irrelevant for the purpose of judicial review of delegated legislation or administrative decisions made under the Act? One of the judgements arguably answered that question in a novel way.

Federal Court. Paragraph 34(3)(b) of Citizenship Act 2007 provided citizenship revocation could not occur if "the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country". Is the question whether Applicant would become “a person who is not a national or citizen of any country” a jurisdictional fact, so that the Court can and should answer that question for itself? Is s 34(3)(b) a limitation upon, as opposed to a precondition for, the exercise of the power to revoke citizenship?

Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?

Federal Court (Full Court). In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, was it necessary for the judicial review applicant to show that any errors were jurisdictional? In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, is there a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional?

Federal Court. Did s 501CA(4) of the Migration Act 1958 (Cth) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?

Federal Court (Full Court). Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law? Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm? Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?

Federal Court. This decision interprets in detail the operation of s 116(1)(e): "... the Minister may cancel a visa if he or she is satisfied that... the presence of its holder in Australia is or may be, or would or might be, a risk to ... the health, safety or good order of the Australian community or a segment of the Australian community".

Federal Court. In considering whether an applicant for visa subclass 309 (partner) was a de facto partner of the visa sponsor, was the Tribunal allowed to consider the best interests of the affected children or related issues or "any hardship that might be occasioned by refusal of the visa, be that to the visa applicant, the sponsor, or their children"?