Case Law Updates

Federal Court. Paragraph 116(1)(g) provided that the Minister may cancel a visa if "a prescribed ground for cancelling a visa applies to the holder". Reg 2.43(1)(p)(ii) prescribed the following ground: "in the case of the holder of a Subclass 050 ... or ... 051 ... visa - that the Minister is satisfied that the holder ... has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country". Does a material failure to comply with Direction 63, issued under s 499, lead to jurisdictional error?

Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?

Federal Court. Was the Applicant inhibited in his task of seeking judicial review within the 35-day statutory deadline, because the reasons for the decision of the Tribunal followed 21 days after the decision was made? Is it for the Court to set to one side a clearly expressed conclusion by the Tribunal on the basis that it may be a mistake?

Federal Court (Full Court). Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth), due to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Before cancelling the visa under s 501(3A), was Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision? Did 8.1.1(1)(a) of Direction 90 require the Tribunal to make its own assessment of the seriousness of the offending?

Federal Court. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?

It is often asserted that courts are not allowed to engage in merits review of administrative decisions. However, according to this Federal Court decision, there are circumstances where courts are allowed to do so. Further, can a 'court ... review an administrative decision for unreasonableness based on a finding of fact, short of there being “no evidence” for the finding'?

Federal Court. Can a failure to make an obvious inquiry amount to jurisdictional error in decisions to revoke citizenship under s 34 of the Australian Citizenship Act 2007? In assessing whether revocation would render Applicant stateless, was it legally unreasonable for Department to rely on information provided by the Ukrainian Vice Consul concerning the operation of the laws of her own country, as the Vice Consul was not a Ukrainian lawyer? Was Minister bound to engage in an “active intellectual process” in deciding whether to exercise his power under s 34(2)? We summarise answers to these and several other questions.

Federal Court. Can it be said that, "once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case"? Were the circumstances of this case, where the applicant was a self-represented litigant seeking habeas corpus, exceptional? Can it be said that "abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame"?