Case Law Updates

Federal Court. Is it reasonably arguable that the question of whether it is ‘reasonably practicable’ to remove a person from Australia is an objective ‘jurisdictional fact’, that is a fact which a court can and should determine for itself?

Federal Court: In MZABP, FCAFC had held that it is an error for FCCA to assess the full merits of a judicial review application made under s 476 for the purposes of s 477(2). Here, did FCCA make that error by saying that the application under s 476 "would be dismissed if it were a matter that I was dealing with on the merits"? If so, does the materiality test apply to court decisions? With respect: although the FCA has "not had any authority cited to [it] which demonstrates that the materiality principle" applies to court decisions, an earlier FCAFC decision had answered that question; we believe the FCA misinterpreted the materiality test; we disagree with the FCA's decision on whether the error in the present matter was material.

Federal Court (Full Court). "In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials". Does that apply to s 501 visa refusals? In application for subclass 201 visa, Appellant argued he and his "family" (i.e. parents and siblings) had humanitarian claims. He then married, had a child and notified DHA of that. Can it be said that, "once the marriage and the birth were notified..., there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child"? Is subclass 201 a protection visa, with the result that, according to BAL19, s 501 should not have applied?

Federal Court. In the context of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), can it be said that, since the grant of a student visa would allow the appellants to stay in Australia for only a specified period, a mere change of plans from a visitor visa to make an application for a student visa could not provide evidence of an intention to stay permanently or indefinitely in Australia?

Federal Court (Full Court). By reason of s 82(2) of the Migration Act 1958 (Cth), the Appellant's ETA ceased to be in effect upon the grant of a subclass 600 visa. When the latter visa ceased to be in effect, was the ETA reactivated by operation of law?

Federal Court. In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Is the correct approach to consider the proposed ground of appeal at a reasonably impressionistic level?

Federal Court. In an application for mandamus compelling performance of the duty under s 198AD(2), does the applicant bear the onus of establishing "the non-existence of those circumstances described in ss 198AE, 198AF and 198AG which make s 198AD inapplicable"? Does s 198AD apply to a 'fast track applicant'? Does AJL20 apply to s 198AD(2)? Does FCA have power to order that the applicant be kept at the home of his supporter for the purpose of "immigration detention"?

Federal Court. The Appellant answered in the affirmative the following question contained in a form given to him by the Tribunal: "Do you and any other applicants consent to the Tribunal deciding the review without a hearing?" Was there ambiguity as to whether consent was given for the Tribunal to proceed without a hearing? Is it "contrary to the ‘spirit’ of the Migration Act [for the Tribunal] to ask an applicant if he or she consents to a review without an oral hearing"?

Federal Court. AAT was required to consider under s 501CA(4) whether to revoke the mandatory cancellation of the judicial review time extension Applicant's visa and to take into account the protection of the Australian community, as mandated by Direction 79. Para 14.1 of that direction required decision makers to consider the "impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour". Did the AAT engage in impermissible double counting when it considered the effect of the Applicant's offending both in the context of the protection of the Australian community and in the context of the impact on the victims of the Applicant's offending?

High Court. Was the Tribunal required to apply a Direction in force at the time when the decision under review was made or when the application for merits review was made, instead of the Direction in force at the time when the Tribunal made its decision? In other words, did the Appellant have an accrued right to have Tribunal determine his review in accordance with a Direction in force before the date of the Tribunal's decision?