Case Law Updates

Federal Court (Full Court). Is the word “should” in para 8.4(4) indicative of a requirement that must be followed (i.e. that is mandatory)? Is it doubtful that the Tribunal can permissibly have independent regard to community expectations as assessed by it, given the Direction’s express provisions with regard to that subject which can be expected to cover the field?

Federal Court. In relation to Direction 79, can it be said that "the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur"? If so, must the whole case under consideration must be out of the ordinary or unusual? Can it be said that "the precise circumstances which led to the issue of materiality not being in issue may be relevant to whether the Court can proceed on the basis that there is no issue as to materiality"?

Federal Court (Full Court). The power under s 501CA(4) of the Migration Act 1958 (Cth) can be exercised in the circumstances described in s 501CA(1), which provides as follows: "This section applies if the Minister makes a decision ... under subsection 501(3A)" (emphasis added). If a visa is cancelled under s 501(3A) by a delegate, does that mean that a decision cannot be made under s 501CA(4)?

Federal Court. Is the exercise of the power in s 501BA(2) of the Migration Act 1958 (Cth) "subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister"? Is the Minister required to consider the effect of any delay in making a decision under s 501BA?

Federal Court (Full Court): Appellant applied for revocation of the mandatory cancelation of his visa, providing his wife's statutory declaration about his remorse and his own declaration to the same effect. The Minister ignored the Appellant's own declaration. Whether that amounted to jurisdictional error turned on whether the wife's declaration was the "best" evidence about the Appellant's remorse.

Federal Court (Full Court). Is the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender a relevant vulnerability for the purposes of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of Direction 90?

High Court. The Plaintiffs argued that the covid-19-related Quarantine (Closing the Border) Directions (WA) issued under the Emergency Management Act 2005 (WA) impermissibly infringed s 92 of the Constitution. The Court held that the exercise of the power given by ss 56 and 67 of the Act to make paras 4 and 5 of the Direction did not raise a constitutional question. Does this mean that the limitations imposed by s 92 of the Constitution are irrelevant for the purpose of judicial review of delegated legislation or administrative decisions made under the Act? One of the judgements arguably answered that question in a novel way.

Federal Court (Full Court). Is 'danger' as used in s 36(1C)(b) of the Migration Act 1958 (Cth): such that "the harm that will eventuate if the danger becomes a reality is non-trivial" and "of a physical or psychological kind"; one "that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates"? Is the 'Australian community' as used in s 36(1C)(b) conceived of as the community as a whole and/or any person or persons who are part of it?

Federal Court. Can it be said that, although the Tribunal would not have been entirely acting of its own initiative if it accepted K's invitation conveyed by the Applicant to speak to the Tribunal, the information that would have been given by K would not have been presented "in support of the [Applicant's] case", as it would rather have been presented as a result of the Tribunal eliciting information from K? In other words, was the giving of information by K precluded by s 500(6H) of the Migration Act 1958 (Cth)?

Federal Court. The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?