Case Law Updates

Federal Court. Should Direction 65 be read down to be consistent with the Family Law Act 1975? Was AAT required to "give weight to a right, value or interest recognised by statute, international instrument or the common law"? Is Direction 65 inconsistent with that Act? Does the Convention on the Rights of the Child inform the interpretation of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65? Is Direction 65 delegated legislation? If not, is it anyway sensible to assume it intended to give effect to Australia's obligations under international law? Is Direction 65 inconsistent with the common law principle of parental responsibility?

Federal Court. Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect? Is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?

According to the OMARA, following a complaint, it sent a notice under s 309 of the Migration Act 1958 (Cth) to the practitioner, who asked for an extension of time to respond to the notice until the lifting of the covid-19 pandemic restrictions. Were those restrictions sufficient to justify a time extension?

Federal Court. Applicant applied to FCA for extension of time within which to "appeal" AAT decision under s 44(2A) of AAT Act. AAT had decided, based on FCA decision in Lesi, that it had no power to adjourn the review, based on s 24(6)(a) of Australian Citizenship Act 2007. Applicant argued Lesi was wrong, but conceded it was not plainly wrong. If FCA allowed extension application: it could recommend that a direction be made under s 20(3) of FCA Act referring matter to FCAFC; if that was not recommended, Applicant could "appeal" AAT's decision, in which case FCA could dismiss appeal on the basis Lesi was not plainly wrong, but he would then have a right of appeal to FCAFC anyway. If FCA dismissed time extension application, that would be an interlocutory decision, meaning Applicant would need leave to appeal to FCAFC, unless time extension application itself were referred to FCAFC under 20(3). If, on a reasonably impressionistic level, there is a serious doubt about the correctness of Lesi, would that suffice for FCA to allow time extension application and make recommendation? Or would FCA also need to find Lesi was plainly wrong? Was there such a doubt?

Federal Court (Full Court). Does s 273(1) of the Migration Act 1958 (Cth) authorise the Commonwealth to refuse entry if a visitor insists on...

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). Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention? Was the meaning of “sentenced to a term of imprisonment” in s 501(7) of the Migration Act 1958 (Cth) intended to depend on the different sentencing regimes in diverse jurisdictions? Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?

In CPJ16, FCA had determined whether AAT could consider criteria within s 501(6) not considered by original decision-maker. Here, delegate had refused to grant protection visa based on cl 866.222. By the time of AAT's decision on review, that provision had been disallowed and thus no longer applied. Question to AAT was whether to remit the matter to Department with a direction that cl 866.222 did not apply or assess for itself the other criteria for the grant of the visa. It chose the latter. Was AAT authorised to do that? With respect, this decision makes no reference to CPJ16, which was on point, although concerning a different provision.