Case Law Updates

Federal Court. Was the Tribunal required to identify, in its determination of both the “serious reasons” in s 5H(2) and the “serious non-political crime” in s 5H(2)(b) of the Migration Act 1958 (Cth), the alleged “crime” and analyse its elements? Although s 5H(2) required the decision maker to "consider" whether the elements in ss 5H(2)(a), (b) or (c) are met, can it ask itself whether it "suspects" or "believes" that they are met?

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

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. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

Federal Court: Applicant's citizenship was revoked under s 34(2) of the Citizenship Act 2007 and his deportation was scheduled for 19 Nov 2019. On 11 Nov 2019, Applicant applied to AAT for: review of the revocation decision; and a stay order under s 41 of the AAT Act, which gives the AAT the power to suspend the operation of the revocation decision "for the purpose of securing the effectiveness" of the review application. The hearing of the application for the stay order was to occur on 20 Nov 2019. Applicant eventually applied to FCA for judicial review of the revocation decision and sought interlocutory injunction, restraining Minister from deporting him.

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

Federal Court: does the question "has the applicant been in any previous relationships" in a partner visa application form refer to relationships in general or only to married or de facto relationships? Can decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? In determining whether information is false, does it matter that, at the time the information was provided, the FCCA had interpreted s 5CB in a way that was subsequently rejected by the FCA?

'it was legally unreasonable for the Tribunal to make its decision in this case without waiting for the Minister to make his decision on the nomination approval application, particularly... where the Minister had said about five weeks earlier that the application was progressing...'

Federal Court: Could it be said that, once a visa application form is first drafted on a particular date, it cannot "thereafter be altered and that its form [is] forever fixed as at that date"? If, while a non-citizen is in the migration zone, the Minister considered an invalid protection visa application to be valid and refused to grant the visa, is the non-citizen barred under s 48A from making further protection visa applications while in the migration zone? Does the s 48A bar apply to non-citizens who are making a new protection visa application as secondary applicants?

Federal Court. Does the concept of proportionality play a role in determining whether an exercise of discretionary power was legally unreasonable? Does the concept of legal unreasonableness apply to individual aspects of the fact-finding of a decision-maker, such as credibility findings? Does the concept of proportionality form part of the assessment of whether a credibility finding has been made in accordance with established principles as to illogicality or irrationality?