Case Law Updates

Federal Court: Applicant: unsuccessfully applied to FCA for judicial review and appealed to FCAFC; did not rely in those proceedings on the grounds relied on in Ibrahim; applied to the HCA for special leave to appeal the FCAFC's decision; made a fresh application to FCA for review of the same administrative decision while the special leave application was pending, but Registrar refused that application as an abuse of process; applied to FCA for order that Registrar accept his fresh application. Should the Anshun estoppel apply against the fresh application?

Federal Court. Does it matter for the purpose of s 501(7)(c) the country where a non-citizen is sentenced? Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events? If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?

'There is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing'

Federal Court (Full Court). Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?

Federal Court. Delegate refused to revoke mandatory cancellation of judicial review Respondent's visa under s 501CA(4). AAT remitted the matter to the Minister on the basis that it was "bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained". Was AAT subject to an investigation duty? Was AAT bound to remit the matter to the Minister?

Federal Circuit Court. Section 5F(1)(b) of the Migration Act 1958 (Cth) provided that the prospective partner visa applicant and her sponsor must "have a mutual commitment to a shared life as husband and wife to the exclusion of all others". Did s 5F(1)(b) require the visa applicant and sponsor to manifest an affection for each other?

Federal Court (Full Court): The effect of s 48A(1AA) used to be that a person who relied on the Refugees Convention criterion under s 36(2)(a) for a protection visa (PV) application was barred from making a further PV application while in Australia if the original application had been refused. However, that person was not barred from making a further PV application based on the complementary protection under s 36(2)(aa). Subsection s 48A(1AA) was then amended, with the aim of changing that rule, but has the amendment achieved that aim?

Federal Court: In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with Ibrahim. Can that division be resolved? Further, can errors which individually do not satisfy the materiality test do so if combined?

Federal Court. Is it "appropriate to conclude from the text of s 501G(1), considered in context, that the purpose of the requirement expressed in s 501G(1) for a notice to be given is to be protective of the interests of the person affected by the relevant decision beyond requiring notification"? Do s 500(6A)-(6L) require the Minister to explain the consequences of those provisions?

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.