Case Law Updates

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court: cl 485.223 requires application to be accompanied by evidence that skills assessment has been applied for. In Khan, Full Court had decided that the clause "established an objective temporal test" which does not "import notions of fairness". Here, as a result of a practitioner's mistake, the assessment was only applied for after the visa application had been lodged. Should this case be decided differently on the basis that, here: the practitioner made that mistake; and ImmiAccount "should have rejected the application" given the answer "no" to the question on the visa application form on whether the applicant had applied for an assessment?

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 (Full Court). Section 9.1.1 of Direction 79 required AAT, in considering the exercise of discretion under s 501(2), to have regard to the "principle that crimes of a violent nature against women or children are viewed very seriously". Appellant was convicted under s 13 of Crimes (Domestic and Personal Violence) Act 2007 (NSW): "A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence". He was also convicted under s 14: "A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence". Is s 13 limited to physical violence? Was AAT wrong to label offences as "serious"? Did AAT depart from Briginshaw principle because of lack of conviction to support a finding?

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?

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"? 

Federal Court. Should subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention? Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre? If the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised, was the applicant’s detention thus unlawful?

Federal Court (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court. Brennan J stated the tripartite test in Mabo (No 2) for determining a person's Aboriginality. That test was adopted in Love in the context of determining whether a person is an alien within the meaning of the Constitution. For the purposes of applying the 2nd and 3rd limbs of that test, can a person "be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically", in the absence of evidence of the laws and customs of that different society, "including particularly in relation to the existence or process of any mechanism of 'cultural adoption'"? Does the indigenous society or people have to "exist today for a biological descendent to be able to establish that he or she is not an alien"?