Case Law Updates

High Court. Did the delegate fail to comply with ss 56 and 62 of the Migration Act 1958 (Cth), and thus made a jurisdictional error, by saying that "any documents that are not translated by accredited translators in Australia, or by official offshore translators, will not be included as part of [the assessment of whether to grant a visa]"?

Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.

Federal Court (Full Court). Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention? Was the meaning of “sentenced to a term of imprisonment” in s 501(7) of the Migration Act 1958 (Cth) intended to depend on the different sentencing regimes in diverse jurisdictions? Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment?

Federal Court (Full Court). Can it be said that, although a court cannot scrutinise an administrative decision with "an eye keenly attuned to the perception of error", it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case"?

Federal Court. Was the Tribunal required to advise the applicant of his entitlement to seek a short adjournment so that he could provide statements from one of more of his siblings in Australia?

High Court. Must it be accepted that, "if a visa applicant is unresponsive, there may come a point in time where it is reasonable for a decision‑maker to exercise the discretion under s 62 of the Migration Act and make a decision to refuse to grant a visa"? If so, could a reasonable decision-maker "have decided that that point had been reached when the plaintiff had obviously misunderstood what was being offered to her and no one attempted to correct her misunderstanding"?

Federal Court (Full Court). Do the expressions in ss 5L(c)(ii) and 5J(3)(a) of the Migration Act 1958 (Cth) necessarily encompass the same "characteristic"? Assuming that IAA accepted that the Appellant's interest for music and dance was "a characteristic that [was] fundamental to [his] identity", was it open to IAA to find that Appellant could avoid a real chance of persecution by carrying out his activities underground and with caution? Could the IAA have "decided that the appellant’s expression of his interest in music and dance “underground” would not conflict with a characteristic which was fundamental to his identity ... without having made a finding concerning the existence and nature of that characteristic"?

Federal Court (Full Court): In 2012, delegate decided not to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse the Appellant a bridging visa and notified him of it. In 2013, Appellant was granted a partner visa. In 2016, Appellant was convicted for conduct occurring for 7 years until 2009. In 2018, Minister found that Appellant failed the character test due to the 2016 conviction and personally exercised the discretion to cancel his visa under s 501(2). Did the 2012 decision estop the Minister from making the 2018 decision?

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?