Case Law Updates

Federal Court. Is what the High Court said in SZSSJ also applicable to s 351 of the Migration Act 1958 (Cth)? Can the Minister lay down Ministerial intervention guidelines?

Federal Court (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

Federal Court. DHA cancelled visa under s 109. AAT relied on 37 documents given by a 3rd-party as evidence that Appellants were not stateless. Appellants unsuccessfully tried to obtain a copy of those documents through FOI, to the AAT's knowledge, and submitted to AAT they were not authentic and were given to exact revenge. Was AAT required under s 424A to provide Appellants with those documents or copies of them? Did AAT fail to provide a meaningful hearing under s 425?

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 (Full Court): in a separate  (but not in dissent) judgement, Mortimer J held that the High Court's materiality test in Hossain did not apply to procedural fairness and legal reasonableness

Federal Court (Full Court): AAT dismissed application under s 42A of AAT Act. Applicant applied for reinstatement of that application. AAT refused to reinstate on the assumption that, if it reinstated, the original decision would be affirmed by operation of s 500(6L) of the Migration Act, thus rendering reinstatement useless. Was that assumption wrong? If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance?

Federal Court (Full Court). Subsection 501(2) of the Migration Act 1958 (Cth) gives the Minister the discretion to cancel a visa if certain pre-conditions are satisfied. If certain facts satisfy those pre-conditions but the Minister decides not to cancel a visa, can the Minister re-exercise the discretion and cancel the visa under that same provision based on the same facts? If certain facts satisfy those pre-conditions and the Minister decides to exercise the discretion under s 501(2) to cancel a visa, but the Tribunal sets aside that decision, can the Minister cancel the visa once again under that same provision based on the same facts that satisfied those pre-conditions?

High Court: Plaintiff sentenced to imprisonment for life, with a non-parole period. Just before plaintiff became eligible to apply for parole, legislation changed in a way that his eligibility was severely constrained. Did the legislative change represent resentencing or repunishment, thus offending the separation of powers? Does the fact that the legislative change expressly singled out the plaintiff have any bearing on how that question should be answered? If the legislation was valid, could migration legislation also validly single out an individual?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court: a previous FCA judgement had held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). Does the same principle apply to visa cancellation revocation notices issued pursuant to s 501CA(3)?