Case Law Updates

Federal Court. Does the language of 362B of the Migration Act 1958 (Cth) "confine the circumstances in which the [AAT's] power to dismiss [an application for review] may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued"? Does the AAT have power to conduct hearings via video-link?

Federal Court. Did the Tribunal err in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”? Did para 8.3(2) of Direction 110 direct attention to the impact on the non-citizen of the loss of any other ties to the Australian community?

Federal Court (Full Court). Should decision-makers, when addressing the consideration in para 13.3 of Direction 79, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?

Federal Court. In an FCA decision we recently summarised, the Minister's application for leave to appeal from a decision where he was ordered to answer an interrogatory aimed at determining whether he had turned his mind to a decision was dismissed. In a different case extracted in this article, one of the questions to the FCA was whether it should use its discretion to refuse to grant leave to the Applicant for an interlocutory application seeking a very similar interrogatory, because of the “impracticalities” presented by the possibility of portfolio Ministers being overwhelmed with interrogatories.

Federal Court: This decision summarises the principles governing the exercise of the Tribunal's discretion under s 428 of the Migration Act 1958 (Cth) to call a witness at the request of an applicant under s 426.

Federal Court (Full  Court). FCCA remitted matter to AAT "for determination according to law". AAT disagreed with FCCA reasons and instead followed an earlier FCA decision. Was AAT bound to follow FCCA conclusion? Should a judge follow the judgment of another judge of the same court unless persuaded it is clearly wrong? If FCCA (previous FCCA) finds alternative grounds against Minister, matter is remitted to AAT, Minister does not appeal, AAT affirms original decision and non-citizen applies to FCCA (next FCCA) for judicial review: is it an abuse of process for Minister to argue before next FCCA that previous FCCA was wrong; does previous FCCA decision create an issue estoppel? Are the consequences of a past act or omission capable of engaging the complementary protection criterion in s 36(2)(aa)?

Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?

Federal Circuit and Family Court. Does s 131 of the Migration Act 1958 (Cth) imply an obligation that a revocation decision is to be made within a "reasonable time"? If so, can it be said that "the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense"?

Federal Court: A person fails the character test if it is reasonable to infer from an Interpol notice [IRN] that the person would present a risk to the community: s 501(6)(h). Applicant applied to FCA, seeking orders restraining Minister from refusing visa and declaring that it was not reasonable to infer risk from IRN. Minister served Notice on Applicant to produce Interpol's Response to Applicant's application for IRN to be deleted. Should Applicant's interlocutory application to set Notice aside succeed, on the basis: that Interpol's response could not be used for the purpose of s 501(6)(h); of public interest immunity?

Federal Court. Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive? Was revocation decision a mandatory relevant consideration in the context of AAT's review of the non-revocation decision?