Case Law Updates

Federal Court (Full Court). Did cl 14.1(2) and (6) of Direction 79, which conflicted with ss 197C and 198 of the Migration Act 1958 (Cth), effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia? Is the damage to Australia's reputation if it refoules a person a mandatory consideration for the purposes of s 501CA(4)?

High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?

Federal Court (Full Court). Is an error in the form of legal unreasonableness material to the outcome, by definition?

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court. Are the formative years confined to the period of a person's life when they were a child?

Federal Court. Was it "legally unreasonable for the Authority not to consider getting 'new information' by clicking on the link that was provided as the source of what was described by the appellant as screenshots from the appellant's public Facebook account"?

Federal Court (Full Court). Is the power in s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation?

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?

Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?

Federal Court. Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?