Case Law Updates

Federal Court (Full Court). Is the power conferred by s 501 to refuse to grant a visa "exercised in the performance of the duty imposed by s 65(1)(b) to refuse to grant the visa for the reason that the grant of the visa is prevented by s 501"? In BAL19, FCA decided that s 501 did not apply to protection visa applications. Was BAL19 wrongly decided? Must the power under s 501A(2) be exercised within a reasonable period of time? If so, was a period of 18 months unreasonable?

Federal Court. Can the Tribunal determine for itself that it will not comply with a court order until it is known whether such an order is overturned by a higher court?

Federal Court: The FCA assumed, without determining, that 'the exercise of power under s 501A is subject to an implied obligation that it be exercised within a reasonable time'. Given that assumption, was that obligation breached by the Minister's 5-month delay in making a decision?

Federal Court (Full Court): Are MOCs allowed to calculate what constitutes "significant costs" under PIC 4007(1)(c)(ii)? Does the degree with which MOCs are required to describe the particularity of the "form or level" of a condition "depend upon the extent to which there is diversity in the experience for those with the particular type of condition"? Who bears the onus of proving that degree on judicial review? Are MOCs' opinions binding for the purposes of waiver? If not, are they at least relevant for those purposes? Can a decision be vitiated with jurisdictional error for having relied on a MOC opinion based on outdated information? If so, must there be a "real indication in the material that the condition ... was changing" in order for the information to be outdated? Does this decision resolve the Ibrahim / Nguyen tension?

Federal Court. Is it an error to diminish the weight to be accorded to para 14.2(1)(b) of Direction 79 by reason of either of the sub-considerations...

Federal Court (FCA). Can it be said that, "in the ordinary course all issues of fact and law should be determined at the one time and that the [FCA] should generally exercise the power in r 30.01 of the Rules cautiously and sparingly"? 

High Court. Was the political question posed by cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (whether the grant of a protection visa was in the national interest) answered by the decision-maker in a manner inconsistent with PIC 4001 and s 501 of the Migration Act 1958 (Cth), as the Minister found PIC 4001 to be satisfied and disavowed reliance on s 501, thus rendering the visa refusal invalid?

Federal Court. Appellant's protection visa application was refused. At AAT, he claimed that, if returned to his home country, he would be homeless and destitute due to his financial predicament and would be detained as a result. Generally speaking, s 210 of the Migration Act 1958 (Cth) provides that a non-citizen is liable to pay the Commonwealth the costs of his/her removal or deportation. In determining whether Appellant would become homeless in his home country, should AAT have considered the effect of s 210, which would impose a further financial burden on him?

High Court. Does s 351(1) of the Migration Act 1958 (Cth) involve 2 sequential statutory decisions (the first being procedural and the second being substantive) neither of which the Minister is obliged to make? Were the 2016 Ministerial Instructions an approximation of the 'public interest' (being the test in s 351(1)), with the result that the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers, thereby exceeding the statutory limit on executive power imposed by s 351(3)?

Federal Court. Para 21 of Practice Direction issued by ATT's President under 473FB concerning IAA included: "Your submissions should be no longer than 5 pages". Para 23 stated that if an applicant wanted to give the IAA new information, he/she must also provide an explanation as to why the information satisfied s 473DD. Para 24 read: "Your explanation should be no longer than 5 pages and must accompany any new information you give to us ". Do the 5 pages in para 21 include the 5 pages in para 24? Is there a page limit to the "explanation" in para 23?