Case Law Updates

Federal Court (Full Court): A person fails the character test under s 501(6)(b) if they have been a member of, or have been associated with, a group, organisation or person that has been involved in criminal conduct. Does the Acts Interpretation Act 1901 set up a presumption that a piece of legislation that is silent about its territorial operation, as is the case with s 501(6)(b), only applies within Australia? If so, does the object of the Migration Act 1958 rebut that presumption?

Federal Court. Can administrative decision-makers draw on their own experience and expertise? The Federal Court answered that question as follows: Extract EHV18 v Minister for Immigration, Citizenship,...

Federal Court. Was it legally unreasonable for the Minister to conclude that a certain factual situation persisted, without considering whether the age of the evidence made it safe to so conclude?

Federal Court (Full Court): 'the decision in Hossain did not state a general principle of statutory construction to the effect that there is an implied obligation that all powers conferred on administrative decision-makers are to be exercised on a correct understanding and application of the applicable law such that a material breach of that obligation would be jurisdictional'.

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

Federal Court. Could the Tribunal act under dictation by the decision of a previous Tribunal or give automatic effect to it? Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?

Federal Court. Is the conduct listed in cl 8.5(2) of Direction 110 exhaustive for the purposes of cl 8.5?

Federal Court. Appellant spent most of his years in Australia without working, due to injury. Did cl 14.1(2)(a)(ii) of Direction 65 require AAT to "consider either the appellant’s will to be productive"? Accepting that cl 14(1) requires AAT "to take into account matters of relevance to whether to revoke the mandatory cancellation of a visa, apart from those specified in cl 14(1)", can it be said that "the reasons for a lack of contribution to the Australian community are such a relevant consideration"? Could AAT give lesser weight to the relationship between Appellant and his daughter "because at the time of the Tribunal’s decision she was soon to turn 18"?

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material?