Case Law Updates

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. The Applicant, an unauthorised maritime arrival, made a request for Ministerial intervention under s 46A(2) of the Migration Act 1958 (Cth). Before determining that request, the Applicant was told that he would be removed from Australia. In an application for interlocutory injunction to restrain his removal, did the balance of convenience favour the respondents because removal would frustrate the duty under s 198?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

Federal Court. The Minister purported to cancel tje Appellant's visa under s 501(2), but that decision was quashed in court. The Minister then purported to cancel the Appellant's visa under s 501(3), but that decision was also quashed in court. The Minister eventually cancelled the visa under s 501(3) 'again'. Is the power to cancel a visa under s 501(3) spent if the Minister previously exercised the power to cancel under s 501(2)?

Federal Court: Appellant and wife were granted subclass 186 visas as secondary and primary applicants, respectively, and then divorced. DHA then cancelled the wife's visa under s 128 and the Appellant's visa was cancelled under s 140(1) by operation of law: "a visa held by another person because of being a member of the family unit [MOFU] of the person is also cancelled". Appellant applied for judicial review (JR) arguing: he had standing in the JR application; as he was no longer a MOFU at the time of the cancellation, s 140(1) did not apply; s 140(2) applied instead.

The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"

Federal Court. Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128 of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?

Federal Court: This decision illustrates why it might not be in a client's best interest to provide the Tribunal with a copy of the Department's decision record. Further, was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness or that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?

Federal Court. Did the Tribunal err in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”? Did para 8.3(2) of Direction 110 direct attention to the impact on the non-citizen of the loss of any other ties to the Australian community?