Case Law Updates

Federal Court (Full Court). Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa? Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries? Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?

Federal Court (Full Court): Can admin decision-makers make findings of fact in the absence of evidence? Which of the following approaches is correct? A finding made with no evidence will only amount to jurisdictional error where: a) "the relevant finding is a precondition to the exercise of jurisdiction"; b) "the finding is a critical step in the ultimate conclusion of the decision-maker". Can admin decision-makers, in certain circumstances, "draw on their accumulated knowledge or experience in respect of particular countries"?

Federal Court. If the Minister personally makes a decision under s 501CA(4): is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations; must he give "reasons as to why the expectations of the Australian community should count against revocation"? Must s 501CA(4) decisions  be made within a reasonable period of time? May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

Federal Court. In the context of assessing the national interest, would the threshold of being a danger to the community only be met if the applicant was able to be a part of that community and neither in gaol nor in immigration detention?

Federal Court (Full Court). The Full Court discussed in detail whether single judge decisions of the Federal Court (whether in the original or appellate jurisdiction) bind Full Court decisions (whether in the original or appellate jurisdiction) and vice-versa. It also discussed whether Ali, Ibrahim and BCR16 were correctly decided and the effect of Direction 75.

Federal Court. Was a visa validly granted because it was granted in accordance with the conclusions of a court, despite the fact that those conclusions were later on overturned? Must the operation of s 67(4) be read subject to the proviso that an invalid granting of a visa, even if recorded, is of no effect? Is it necessary to read into s 172(1)(c) the requirement that the granting of a substantive visa be a valid exercise of power?

Federal Court. Does s 501(10)(a) of the Migration Act 1958 (Cth) apply to a formal act or judicial act or order of conviction, but not to a finding of guilt? Can it be said by reason of s 38(2) of the FCA Act and r 25.13.4 of the High Court Rules 2004 (Cth) that, as the Federal Court Rules 2011 (Cth) make no particular provision in respect of the time within which a writ of mandamus should be returned, "unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ"?

Federal Court. Under s 196(4) of the Migration Act, if a person is detained as a result of a visa cancellation under provisions such as s 501, "the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen". Interpreting s 196(4) in isolation, a court would have no power to make a non-final (i.e. interlocutory) order for the release of a person to whom that provision applies. However, s 476A(2) provides that, where the FCA has jurisdiction in relation to a matter, that jurisdiction is the same as the High Court's. Does s 476A(2) give the FCA the power to make an interlocutory order for the release of a person to whom s 196(4) applies?

Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?

Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?