Case Law Updates

High Court. The Tribunal found that both claimants were owed protection, and remitted the matters to the Department. Then, without deciding whether to grant them protection visas, the Department granted them other visas. As per NZYQ, removal from Australia was no longer a legitimate non-punitive purpose to keep them detained. Was the processing of their protection visa applications nevertheless a legitimate non-punitive purpose to keep them detained?

Federal Court (Full Court): Is para 12.3(1) of Direction No 65 concerned with the effects of a crime on a victim and their family? Or is it concerned with the additional impact of a decision to grant a visa on the victim and their family? If the latter applies: could AAT nonetheless deal with Appellant's criminal conduct as "an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1)"; if AAT treated para 12.3(1) as concerned with the effects of the crime (as opposed to the effect of visa grant) on the victim and their family, does it necessarily follow that AAT made a jurisdictional error?

Federal Court: Federal Court had held in a previous decision that, on judicial review, "where an issue goes to a legal error relevant to the exercise of [an administrative] decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker". Here, the Immigration Assessment Authority (IAA) affirmed a delegate's decision to refuse a protection visa, as it found that Sri Lanka was safe. If Sri Lanka then becomes safe, could it be said that the IAA's decision "became" legally unreasonable?

Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?

Federal Court. Para 21 of Practice Direction issued by ATT's President under 473FB concerning IAA included: "Your submissions should be no longer than 5 pages". Para 23 stated that if an applicant wanted to give the IAA new information, he/she must also provide an explanation as to why the information satisfied s 473DD. Para 24 read: "Your explanation should be no longer than 5 pages and must accompany any new information you give to us ". Do the 5 pages in para 21 include the 5 pages in para 24? Is there a page limit to the "explanation" in para 23?

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?

Federal Court. Is the question of indefinite detention a relevant consideration in the exercise of the task under s 36 of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Section 55ZF of the Judiciary Act 1903 (Cth) provides that the Attorney-General may issue "Legal Services Directions" that are to apply generally to Commonwealth legal work. Section 55ZG provides that some persons or bodies such as the Commonwealth "must comply with Legal Services Directions". Is a breach of one of those directions, the Model Litigant Principles, actionable?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?