Case Law Updates

Federal Court. Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV? Is consideration of the "national interest" under cl 790.227 "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"? May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision?

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 (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court (Full Court). Was it open to the Minister to seek to persuade the Tribunal that the Appellant had engaged in the conduct that constituted the offence of which he was acquitted? In other words, could the Tribunal "go behind" the acquittal? In a case which is concerned with a claim of apprehended bias based upon irrelevant but prejudicial material being before the decision-maker, are the reasons given for the decision relevant to determination of whether a claim apprehended bias is made out?

Federal Court (Full Court). Can it be said that, in the content of determining whether there is another reason to revoke under s 501CA(4) the mandatory cancellation of a visa under s 501(3A), "the greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms"? Further, was Omar (first instance) wrongly decided?

Federal Court. Does the term "identity" in s 116(1AA) of the Migration Act 1958 (Cth) have a stable meaning, instead of "ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history"? The appellant's half-brother's visa would be automatically cancelled under s 140(1) if the appellant's visa was cancelled. Was there a denial of procedural fairness to the appellant, as he could have submitted a statement from his half-brother or asked the Tribunal to call him?

Federal Court (Full Court): s 473DD provides that IAA must not consider new information unless certain preconditions are satisfied. But does that provision expressly or impliedly empower IAA to consider new information? Can it be said that "the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the [IAA] in deciding whether 'exceptional circumstances' exist", pursuant to s 473DD(a)? What factors is IAA "required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD"? Can the "matters concerning the substance or merits of the new information" sometimes be relevant for the purposes of s 473DD(a)? Is IAA "required to take into account or have regard to the matters advanced by the applicant as establishing either" ss 473DD(b)(i) or (ii)?

The Federal Court (Full Court) decided whether a Departmental policy is unlawful. The policy deals with the situations in which the Minister should exercise his/her discretion to refuse a citizenship applications under s 24 of the Australian Citizenship Act 2007. The policy deals with children under 16 years old 'applying individually in their own right'.

Federal Court. Generally speaking, a person does not lose Australian citizenship by becoming a citizen of another country. However, there are exceptions. For instance, in some circumstances, a person who once was an Australian citizen is not an Australian citizen under the Citizenship Act 2007 (Cth) if they became a citizen of PNG by reason of the PNG Constitution. In this particular decision, did the Applicant become a PNG citizen by reason of the PNG Constitution and therefore lose his Australian citizenship?

Federal Court (Full Court). The respondent gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell. Does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?