Case Law Updates

Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?

Federal Court (Full Court). Is "the violation of international law ... intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation" under s 501A(2)? If not, does this answer "create any relevant incongruity with a finding that a failure to consider those obligations in a particular case ... means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense"? Does the Minister have a discretion under s 501A(2)?

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?

Federal Court. Is the validity of an application to the Tribunal under s 500 of the Migration Act 1958 (Cth) a jurisdictional fact? By finding that the review application was out of time, did the Tribunal implicitly found that that application was invalid? Did the mere sending of a bundle of documents to the Tribunal constitute a valid Tribunal application?

High Court. Will there "generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration"? When a Tribunal "errs by denying a party a reasonable opportunity to present their case", does reasonable conjecture "require demonstration of how that party might have taken advantage of that lost opportunity"?

Federal Court. In Mataia, FCA had decided that the principle in cl 6.3(5) of Direction No 79 is a not a mandatory relevant consideration. Does Mataia apply to cl 6.3(7)?

Federal Court. This decision interprets in detail the operation of s 116(1)(e): "... the Minister may cancel a visa if he or she is satisfied that... the presence of its holder in Australia is or may be, or would or might be, a risk to ... the health, safety or good order of the Australian community or a segment of the Australian community".

Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?

Federal Court. In considering whether an applicant for visa subclass 309 (partner) was a de facto partner of the visa sponsor, was the Tribunal allowed to consider the best interests of the affected children or related issues or "any hardship that might be occasioned by refusal of the visa, be that to the visa applicant, the sponsor, or their children"?