Case Law Updates

Supreme Court of New South Wales. Is the question of whether, in applying a legislative power or discretion that does not infringe on the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law? If not, does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

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: 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.

Federal Court. AAT set aside delegate's decision to refuse protection visa and granted Respondent a visa. Minister applied to FCA for judicial review, claiming AAT had no jurisdiction to grant the visa. Minister also made interlocutory application for matter to be expedited and kept Respondent in detention despite visa grant. Respondent made interlocutory application for his immediate release, on the basis that he was being unlawfully detained. Should FCA expedite the hearing of the Minister's judicial review application? Did FCA have jurisdiction to entertain the Respondent's interlocutory application for release? Did FCA have the power to issue writ of habeas corpus? Was Respondent unlawfully detained after Tribunal granted him a visa?

Federal Court. Can it be said that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"? Would a fair-minded observer "reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers"? Did the Tribunal effectively take the role of a contradictor?

Federal Court (Full Court). Was it permissible for the Tribunal to conclude that the Appellant's risk of recidivism fell within a broad range, namely "from (1) at best, low-moderate; and (2), more likely, a risk of re-offending that is now little or no different than what it was at the time of his most recent removal from the Australian community"?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Federal Court (Full Court). In an "appeal" under s 44(1) of the AAT Act, does a misinterpretation of the law amount to an error only if it is material to the decision in question? If not, is the issue of the materiality of an error nevertheless relevant to whether relief should be refused in the exercise of the Court’s discretion? In exercising the residual discretion under s 34(2) Citizenship Act 2007 (Cth), was the Tribunal limited to considering conduct or matters which had resulted in convictions within the ambit of ss 34(2)(b)(i) to (iv)?

Federal Court. Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"? Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?