Case Law Updates

Federal Court. When considering the exercise of his discretionary power under s 501A(2) to refuse to grant a visa in the national interest, is the nature of the visa a mandatory consideration? As Minister accepted Applicant would suffer harm if returned to NZ, should Minister have: explained why returning her to NZ would be in the national interest; considered "the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant"?

Federal Court. Does s 131 of the Migration Act 1958 (Cth) confer "power to revoke the cancellation of a visa even where the visa would have ceased to be in effect because the specified period during which the visa permitted its holder to travel to, enter and remain in Australia has ended"? Or rather, if revocation occurs after the original expiry date, is the restored visa 'stillborn'?

Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?

Federal Court (Full Court). Does the word "practicable" as used under s 501CA(3) of the Migration Act 1958 (Cth) ("as soon as practicable") mean feasible? If so, can it be said that "the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice"?

Federal Court (Full Court). Does the subject matter of s 501 of the Migration Act 1958 (Cth) deals completely, and thus exclusively, with the subject matter of PIC 4003(b) of Schedule 4 to the Migration Regulations 1994 (Cth), with the result that PIC 4003(b) detracts from or impairs the operation of s 501?

Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?

Federal Court (Full Court): This decision indirectly prompts the question of whether and how it possible to avoid, in some circumstances, the restraint placed on the IAA on receiving "new information". Did the Secretary breach s 473CB(1)(c) "simply on the basis that [some documents] were in the Department’s possession or control and were not considered for relevance by the Secretary"? If not, does s 473CB(1)(c) only require the Secretary to consider documents of which he/she is aware? If not, should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control"?

Federal Court (Full Court). Can it be said, based on a single judge FCA decision, that the "principles of legal unreasonableness, in the sense considered in Li, have no application in the review of a decision... as to the existence of certain facts that satisfy statutory criteria", but only to the review of a discretionary power? Summary of principles concerning review of: state of satisfaction under s 65 for illogicality and irrationality; adverse credibility findings. Can it be said that "the psychological reactions of a couple to their first sexual encounter are matters of common human experience"? Or do those reactions need to be supported by evidence such as psychological evidence? Can it be said that, "if two people give a different account of an event and the evidence of one is rejected, that does not provide a logical basis on which to reject the evidence of the other"?

Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?

High Court. Do the verbs "give" and "invite" in s 501CA(3) require that regard be had to the circumstances of the recipient? Must the information and invitation be given by the Minister, or a delegate, personally? Did the timeframe of 28 days within which to make a revocation request under s 501CA(4) run from the date the invitation was sent via email to the immigration detention centre, instead of when it was handed to the respondent a day later? By incorrectly stating the 28 days by reference to the date of the email, was the invitation invalid? Can an analogy be drawn with DFQ17 ?