Case Law Updates

Federal Court. While the AAT was required to treat offending of the type described under cl 13.1.1(1)(a)-(b) of Direction 79 as “very serious”, did it remain for it to allocate weight in respect of such offending relative to all other relevant considerations under s 501CA(4)(b)(ii) of the Migration Act? Are cl 13.1.1(1)(b) and (d) ultra vires s 499 of the Act to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?

Federal Court (Full Court). FCAFC held in Ibrahim that Minister misapprehended s 501BA(2) by believing it prohibited him from affording natural justice. Here, Minister admitted to FCA that if Ibrahim applied to s 501(3), he "proceeded on the basis of the alleged misapprehension". After admission but before FCA's decision,  FCAFC held in Burgess that Ibrahim applied to s 501(3). FCA then decided that Burgess and Ibrahim were correctly decided, but that Minister's admission was not conclusive. Was FCA wrong? Further, for the purposes of the materiality test, Ibrahim held that the judicial review applicant had to prove what he would have done had misapprehension not occurred, with which FCAFC (differently constituted) disagreed in Nguyen. 

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

Federal Court. Does the "fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer ... mean that the witness is not in a fit state to give evidence"? Is the Tribunal "entitled to expect that a legal representative for a party will assist it in avoiding error"? Is the Tribunal: "bound to receive evidence of little probative value"; entitled "to be selective about the quality and quantity of material it will consider in any case"?

High Court (single Justice). Where an application for merits review is ongoing and yet to be concluded, is valid on its face and made within the prescribed time limit, is it an abuse of process to file a judicial review application with the High Court to review the same decision, in the absence of exceptional circumstances?

Federal Court (FCA). Can a court grant mandamus by way of interlocutory relief? Does the FCA have jurisdiction or power to grant mandamus compelling...

Federal Court (Full Court): The mandatory cancellation provision, s 501(3A), was inserted into the Migration Act 1958 (Cth) in 2014 and obliges the Minister to cancel a visa if he/she is satisfied that a non-citizen has a substantial criminal record and is serving a full-time sentence of imprisonment. "What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?"

High Court. Is a non-disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) "new information" within the meaning of s 473DC? If so and the IAA treats a certificate as valid and exercises the power conferred by s 473GB(3)(a) to have regard to the information protected by the certificate, can the IAA be taken to have considered that the certificate itself "may be relevant" within the meaning of s 473DC(1)(b)?

Federal Court (Full Court). 1st Appellant applied for protection visa and added her children, 2nd and 3rd Appellants. Until and including AAT hearing, children had not made their own protection claims. They all attended the hearing in person. Practitioner also attended, but over the telephone, as his flight was delayed. Children were neither heard nor asked to be heard. 1st Appellant told AAT during hearing her children did not have their own protection claims and practitioner did not intervene to correct her. AAT asked for children to leave hearing room while 1st Appellant gave evidence, which they did. Practitioner did not object to that, but made post-hearing submissions including children's own protection claims. Can it be said that lack of objection and intervention meant that procedural fairness obligation in s 425 was not breached? If so, does that imply practitioners have a right to do so?

Federal Court (Full Court). For a person to be a ‘parent’ within the meaning of s 12 of the Australian Citizenship Act 2007 (Cth), must he or she be the biological parent of the child? Can it be said that, "whether the relationship between [the Respondent's mother and the Respondent's claimed father] was “genuine and continuing” at the time of [the Respondent's] birth or whether [her mother] may have made misrepresentations concerning the extent of her relationship with [the claimed father] is of limited relevance to, much less determinative of, the statutory question"?