Case Law Updates

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.

Federal Court. Applicant gave AAT copy of an Apprehended Domestic Violence Order (ADVO) granted against the sponsor of his partner visa application. AAT affirmed partner visa refusal. Applicant claimed his lawyer advised him to withdraw judicial review application before FCCA in the last minute. FCA found Applicant disagreed with lawyer's advice but "went along with [it]". FCCA gave consent orders, dismissing judicial review application. Applicant applied to FCA for leave to appeal FCCA's decision. Was Applicant estopped by the doctrines of res judicata or Anshun estoppel from pursuing the appeal? Did the circumstances in which the consent orders were made vitiate that consent? Was the grant of the ADVO in itself proof that Applicant was in a spousal relationship with sponsor and therefore met cl 820.211?

Federal Court (Full Court). Section 501(5) provided that the power in s 501(3) of the Migration Act 1958 (Cth) could only be exercised by the Minister personally. Can it be said that s 501(5) allows a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but does not allow the decision-maker to determine not to consider information which the affected person provided prior to the decision being made?

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

Federal Court. Is the grant of an injunction that interfered with the performance of the statutory duty to remove unlawful non-citizens from Australia as soon as practicable exceptional, therefore requiring there to be a strong case for the making of the order?

Federal Court. Is a failure to disclose other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision fatal to the latter proceeding?

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. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court. Can it be said that, in forming a view, for the purposes of r 1.15AA(1)(e) of the Migration Regulations 1994 (Cth), "as to whether the assistance cannot reasonably be (a) provided by any other relative of the resident (being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), or (b) obtained from welfare, hospital, nursing or community services in Australia, it is necessary for the Tribunal to have regard to the nature and extent of the relevant person’s need for direct assistance in attending to the practical aspects of daily life"?

Federal Court (Full Court). Is the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender a relevant vulnerability for the purposes of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of Direction 90?