Case Law Updates

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?

Federal Court. "Where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted" in an application for judicial review, does it necessarily follow that the applicant must demonstrate "something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time"? If so, would it be difficult to demonstrate that circumstances are exceptional if the case sought to be advanced were not "exceptional"?

Federal Court (Full Court): Applicant did not appear at FCCA hearing, which dismissed a judicial review application under r 13.03C(1)(c) of the Federal Circuit Court Rules. FCCA assessed application for reinstatement of the judicial review application under r 16.05(2)(a), taking into account only one aspect of potentially relevant considerations: whether it was in the interests of the administration of justice to do so. FCCA refused to reinstate. Appellant applied to the Federal Court for leave to appeal the FCCA's decision, arguing that FCCA's failure to take into account other considerations amounted to error.

Federal Court. Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?

Federal Circuit and Family Court. May a court "award costs where an underlying dispute is rendered moot, even where a decision is not delivered"? If so, where "the relevant supervening event occurs after a trial on the merits, with full argument and submissions from the parties, but before the decision is handed down", will those arguments hold greater weight in the decision whether to make a costs order? Should no order be made, as both sides got what they wanted?

Federal Court. Can it be said that "evidence that a particular cohort of persons has a 13% chance of recidivism is equivalent to a statement that 13 out of 100 persons in the cohort will reoffend but that evidence, by itself, says nothing about the likelihood of a particular member in the cohort reoffending"? Did cl 6.3(5) contain a mandatory consideration? Are the offences to which cl 13.1 of Direction No 79 is directed "violent and/or sexual crimes against women, children and vulnerable members of the community"?

Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?

Federal Court. Can it be said that, in forming a view, for the purposes of r 1.15AA(1)(e) of the Migration Regulations 1994 (Cth), "as to whether the assistance cannot reasonably be (a) provided by any other relative of the resident (being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), or (b) obtained from welfare, hospital, nursing or community services in Australia, it is necessary for the Tribunal to have regard to the nature and extent of the relevant person’s need for direct assistance in attending to the practical aspects of daily life"?

Federal Court. The Minister found that cancellation under s 501BA(2) was in the national interest, for instance because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons who committed serious offences to remain in Australia. Was that finding legally unreasonable, as the Applicant was NZYQ affected and would thus remain in Australia anyway?