Case Law Updates

Federal Court (Full Court). Is the power to allow an appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below?

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?

Federal Court. In the context of assessing the national interest, would the threshold of being a danger to the community only be met if the applicant was able to be a part of that community and neither in gaol nor in immigration detention?

Federal Court (Full Court). Do the words “a danger” in s 36(1C) of the Migration Act 1958 (Cth) refer to more than trivial harm? Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community? Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?

Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?

Federal Court. s 501CA(3)(a) required Minister to notify non-citizen that visa had been mandatorily cancelled under s 501(3A). s 501CA(4)(b) required Minister to invite non-citizen to make representations seeking revocation of visa cancellation within period prescribed by regulations. Reg 2.52 set out a period of 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a). When do 28 days start to run? Minister gave notice & made invitation on 22 Jun 2017, but Applicant only made representations on 4 Sep 2017. On 11 April 2019, DHA emailed the Applicant a personal circumstances form, giving him 28 days to respond. Did that email constitute a fresh invitation such as to recommence the running of time and re-enliven the Minister’s power? Can Minister consider late representations

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court (Full Court). "In light of the findings of the Tribunal (which are treated as findings of the Minister pursuant to s 43(6) of the [AAT Act]), and/or the direction of the Tribunal made pursuant to s 43(1) of the AAT Act", was the Minister "obliged to conclude that [the respondent] was not a danger and/or risk to the Australian community"? Should it be "implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1)"?

Federal Court. Will the Court only grant a stay of Tribunal proceedings when its supervisory jurisdiction is involved, and where there are shown to be “exceptional circumstances”?

Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?