Case Law Updates

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

Federal Court. The Appellant appealed to the FCA from an FCCA decision and raised a new ground of judicial review for the first time on appeal. Should the FCA refuse leave to run the new ground on the basis that, if leave were granted, the Minister would suffer as he would have no practical right of appeal to the HCA?

Federal Court. AAT affirmed delegate's decision not to revoke under s 501CA(4) the mandatory cancellation of the Applicant's visa. On 10 Feb 2020, FCA quashed AAT's decision, but reserved its judgement on whether it should issue a writ of mandamus requiring AAT to determine the application according to law. Subsection 500(6L), which applied to the Applicant at the time of the AAT's decision, provided that the delegate's decision would be affirmed by default if the AAT did not make a decision within 84 from notification of the delegate's decision. Given that, by 10 Feb 2020, the 84-day deadline had already lapsed, would it be futile to issue a writ of mandamus? Or was the AAT's decision, despite having been quashed by the AAT, nevertheless a decision for the purposes of s 500(6L), with the result that that provision no longer applies?

Federal Court: Federal Court had held in a previous decision that, on judicial review, "where an issue goes to a legal error relevant to the exercise of [an administrative] decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker". Here, the Immigration Assessment Authority (IAA) affirmed a delegate's decision to refuse a protection visa, as it found that Sri Lanka was safe. If Sri Lanka then becomes safe, could it be said that the IAA's decision "became" legally unreasonable?

Federal Court (Full Court): the Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). The Appellant argued to the Full Court that a suspended sentence is not a sentence for the purposes of the definition of a "substantial criminal record" under s 501(7).

Federal Court (Full Court). After the Full Court's decision in Pearson was handed down, s 5AB was inserted into the Migration Act. Does the reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” capture aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act (NSW)?

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. 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 (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"?

Federal Court. Will habeas corpus lie where, although a person is not an unlawful non-citizen, an officer detains him/her on the basis of a reasonable suspicion that he/she is an unlawful non-citizen? Must the suspicion that a person is an unlawful non-citizen "be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances"?