Case Law Updates

Federal Court. Applicant applied to FCA for extension of time within which to "appeal" AAT decision under s 44(2A) of AAT Act. AAT had decided, based on FCA decision in Lesi, that it had no power to adjourn the review, based on s 24(6)(a) of Australian Citizenship Act 2007. Applicant argued Lesi was wrong, but conceded it was not plainly wrong. If FCA allowed extension application: it could recommend that a direction be made under s 20(3) of FCA Act referring matter to FCAFC; if that was not recommended, Applicant could "appeal" AAT's decision, in which case FCA could dismiss appeal on the basis Lesi was not plainly wrong, but he would then have a right of appeal to FCAFC anyway. If FCA dismissed time extension application, that would be an interlocutory decision, meaning Applicant would need leave to appeal to FCAFC, unless time extension application itself were referred to FCAFC under 20(3). If, on a reasonably impressionistic level, there is a serious doubt about the correctness of Lesi, would that suffice for FCA to allow time extension application and make recommendation? Or would FCA also need to find Lesi was plainly wrong? Was there such a doubt?

Federal Court. The Appellant applied for an onshore partner visa more than 28 days after he last held a substantive visa. As a result, he had to satisfy Schedule 3 criteria, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. A delegate refused to grant the visa and the Appellant applied to the Tribunal for review of the delegate's decision. The Appellant submitted the sponsor was 20 weeks pregnant and argued that was a compelling reason. Did cl 820.211(2)(d)(ii) expressly or impliedly make it mandatory for the Tribunal to consider the Appellant’s future role as father to the child when born in determining whether there were compelling reasons? If not, did the Appellant, by his submissions, made his future role as a father a mandatory consideration?

Federal Court (Full Court). Could a conclusion that a non-citizen posed a risk of reoffending similar to other ordinary Australian residents rationally support a conclusion that the risk was unacceptable? Can it be said that "a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending"?

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 (Full Court). Section s 501CA(4)(a) provides that the Minister may revoke the mandatory cancellation of a visa if "the person makes representations in accordance with the invitation". Reg 2.52(2)(b) provides that representations must be "made ... within 28 days after the person is given the notice" of cancellation. Here, the notice said that representations must be "received within 28 days". Do the terms "in accordance with the invitation" allow the notice to determine what the legislation means? Do the terms "makes" and "made" mean "receives" and "received"?

High Court. Is the common law presumption against extraterritorial operation more accurately labelled as a "presumption in favour of international comity"? Did the Federal Court of Australia Act 1976 (Cth) confer jurisdiction on the Federal Court? Can it be said that "Federal courts, other than the High Court, owe their jurisdiction to laws enacted under s 77(i) of the Constitution"?

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court (Full Court). Did the Tribunal have the power, in reviewing a refusal to grant the Respondent a SHEV, to determine whether the Minister had made a jurisdictional error in granting him a temporary safe haven visa under s 195A? Is it an implied condition that the state of mind called for by s 195A, namely that the Minister thinks that it is in the public interest to grant the visa, be formed on the basis of a correct understanding of the law?

Federal Court. In NZYQ, the High Court overruled its decision in Al-Kateb. Here, at the time of the Minister's decision, Al-Kateb was still considered good law. Did the Minister's reliance on Al-Kateb shield his decision from jurisdictional error, as it represented the law at the time? Or has NZYQ rather overruled Al-Kateb ab initio (i.e. with retrospective effect)?

Federal Court: DHA refused visa under s 501(1). AAT remitted matter for reconsideration with a direction that the discretion under s 501(1) be exercised in the applicant’s favour. Minister personally set aside AAT's decision under s 501A(2) in the national interest. Minister's exercise of discretion relied in part on erroneous finding that Applicant entered AU on a false identity. In Lu, the risk of harm posed by an affected person to AU community based on the correct criminal record was a mandatory relevant consideration in the exercise of the discretion under s 501A(2). In Gbojueh, risk of harm was mandatory also in the context of determining the national interest. Should Lu be interpreted as only applying to erroneous findings in relation to a non-citizen's criminal record and thus be distinguished? Did Minister's satisfaction about the national interest involve a jurisdictional fact?