Case Law Updates

Federal Court (Full Court). Subsection 501(2) of the Migration Act 1958 (Cth) gives the Minister the discretion to cancel a visa if certain pre-conditions are satisfied. If certain facts satisfy those pre-conditions but the Minister decides not to cancel a visa, can the Minister re-exercise the discretion and cancel the visa under that same provision based on the same facts? If certain facts satisfy those pre-conditions and the Minister decides to exercise the discretion under s 501(2) to cancel a visa, but the Tribunal sets aside that decision, can the Minister cancel the visa once again under that same provision based on the same facts that satisfied those pre-conditions?

Federal Court. Does “giving” a document within the meaning of r 5.02 require “actual delivery” to detainee or authorised person? The definition of "immigration detention" under s 5(1) includes "being held by, or on behalf of, an officer ... in a prison or remand centre of the Commonwealth, a State or a Territory". Does the mere fact that a State prison can be a place of immigration detention mean that a person there held is in immigration detention? Does the cancellation of a person's visa while that person is in criminal detention itself convert the criminal detention into immigration detention? Was the Applicant's last residential address known to the Minister the address where he was serving a prison sentence? Was BDS20 plainly wrong?

FCA: the AAT applied the wrong test under s 21(2)(h) of the Citizenship Act 2007 by stating that it was not comfortably satisfied that the applicant was of good character; further, 'lack of responsiveness... in providing documentation to [the Department]... is conduct that ...'

Federal Court. Was it the Respondent, not the Hon Karen Andrews MP (the now former Minister), who had the responsibility to answer the interrogatories administered by the Registrar? Could Ms Andrews be compelled under Part 21 of the Federal Court Rules 2011 (Cth) to answer the interrogatories? Was Ms Andrews authorised under r 21.04(1) of the Rules to make an affidavit verifying her answers? Could Ms Andrews be compelled to attend before the court or a registrar for oral interrogation under r 21.05(b) of the Rules?

High Court. Should the hypothetical, fair-minded lay observer be attributed with knowledge "that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them"?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Federal Court. Can the fact that a decision record is comprehensive, thoughtful and fully footnoted strongly indicate that an item of evidence not referred to in it was overlooked?

Federal Court. Was it legally unreasonable for the Tribunal to refuse to wait for the outcome of merits review concerning the nomination of a position relating to a subclass 457 visa application before reviewing a decision to refuse to grant the subclass 457 visa?

Federal Court. Delegate refused to revoke mandatory cancellation of judicial review Respondent's visa under s 501CA(4). AAT remitted the matter to the Minister on the basis that it was "bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained". Was AAT subject to an investigation duty? Was AAT bound to remit the matter to the Minister?

Federal Court. In deciding whether to affirm cancellation made under s 109, AAT said Department would conduct an ITOA before removing Appellant from Australia. Combined effect of ss 198 and 197C was that, if AAT affirmed Department's decision, Appellant should be removed as soon as reasonably practicable despite Australia's non-refoulement obligations. Did the removal duty have to be performed regardless of whether any ITOA process would occur?