Case Law Updates

Federal Court. When a single judge of the FCA disagrees with previous decisions of single judges of the FCA, is the question whether those previous decisions should be followed out of comity, rather than whether they are "plainly wrong"? Is a translation provided to the IAA, but not to a delegate, of a document that was before the delegate "new information" for the purpose of s 473DC of the Migration Act 1958 (Cth)?

Federal Court (Full Court). If a non-citizen makes representations under s 501CA(4)(a) within the period specified by the legislation and the Minister (or Tribunal) makes a decision under s 501CA(4)(b) on the merits of the case on the assumption that the representation is validly made, but the period fixed in the invitation issued under s 501CA(3)(b) is incorrect, is that decision nevertheless valid? In other words, will an error in the date fixed in the invitation justify the grant of remedies by a court only if the error is material?

Federal Court (Full Court): In her visa cancellation revocation request, the Respondent made an "uncontentious assertion" that the sentencing remarks relating to her most recent convictions made no reference to whether those convictions involved drug use. The Minister took that assertion as a denial that those convictions were drug related and inferred that, because of the denial, she was likely to re-offend. Should the Minister have put the Respondent on notice that her "uncontentious assertion" would be critical to his decision?

Federal Court: Application must be accompanied by evidence that skills assessment has been applied for: cl 485.223. Applicant must provide positive skills assessment by TOD: cl 485.224. On visa application form, Appellant specified the details (date, etc) of a failed assessment application. Did the mere specification of those details constitute evidence? Could it be said that: the failed assessment satisfied cl 485.223, as all that clause requires is that the visa application be accompanied by evidence that an assessment has been applied for; cl 485.224 could be satisfied by a subsequent assessment, so long as positive?

Federal Court. The Minister found that cancellation under s 501BA(2) was in the national interest, because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons convicted of the offences involved to remain in Australia. Was that finding irrational, as the Applicant was NZYQ affected and would thus remain in Australia anyway?

High Court. Is the common law presumption against extraterritorial operation more accurately labelled as a "presumption in favour of international comity"? Did the Federal Court of Australia Act 1976 (Cth) confer jurisdiction on the Federal Court? Can it be said that "Federal courts, other than the High Court, owe their jurisdiction to laws enacted under s 77(i) of the Constitution"?

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. Did s 501CA(4) of the Migration Act 1958 (Cth) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?

Federal Court. The Appellant appealed to the FCA from an FCCA decision and raised a new ground of judicial review for the first time on appeal. Should the FCA refuse leave to run the new ground on the basis that, if leave were granted, the Minister would suffer as he would have no practical right of appeal to the HCA?

Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?