Case Law Updates

Federal Court (Full Court). For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the Federal Circuit Court to be "scrutinised narrowly and with an eye for error"? Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?

Federal Court. Should the Court withhold the grant of constitutional relief, for instance on the basis that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision, even though NZYQ subsequently overruled Al-Kateb?

Federal Court: does the question "has the applicant been in any previous relationships" in a partner visa application form refer to relationships in general or only to married or de facto relationships? Can decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? In determining whether information is false, does it matter that, at the time the information was provided, the FCCA had interpreted s 5CB in a way that was subsequently rejected by the FCA?

Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material? 

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?

OMARA: "The Agent claimed that he had experienced technical difficulties when lodging" a visa application for a complainant through ImmiAccount. To what extent does OMARA have access to ImmiAccount records? For instance, does it have access to records indicating when a draft application was created or saved? Further, can a client who has not paid any fees or signed an agreement make a complaint?

Federal Court (FCA). If the FCA does not have jurisdiction to determine a judicial review application of a migration decision filed with it but the Federal Circuit and Family Court (FCFC) does, does the FCA nevertheless have power to transfer that application to the FCFC?

Federal Court. Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV? Is consideration of the "national interest" under cl 790.227 "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"? May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision?

Federal Court. The Minister found: "I also consider that he would have the same access to welfare, health, education and public support as other nationals". Was the Minister’s finding limited to a general finding that the Applicant would have the same level of access to welfare and public support as other PRC citizens, which did not encompass a finding as to the existence or extent of such services in the PRC?