Case Law Updates

Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?

Federal Court. Delegate mandatorily cancelled visa under s 501(3A) on character grounds, but then revoked that cancellation under s 501CA. Applicant offended again and delegate mandatorily cancelled visa under s 501(3A) again, but this time did not revoke the cancellation. AAT affirmed non-revocation decision. Can it be said that, as earlier revocation decision formed part of the background facts against which AAT came to exercise its review jurisdiction, the facts before the AAT were not the same as those before the delegate at the time of revocation, with the result that AAT was not bound to follow that revocation decision?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?

High Court. Plaintiff missed AAT deadline and thus applied to HCA for judicial review (JR). Could HCA remit matter to FCA or FCCA? Was delay of 6 months in JR application substantial? What is required for the Minister to discharge his/her obligations under s 57(2)? Although s 55(2) provided that Minister was not "required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information", can it be legally unreasonably for Minister to fail to delay?

Federal Court (Full Court). Is it "permissible for the Court to speculate as to how the Tribunal might have reasoned or what conclusions it might have reached if it had not made the error in question"?

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .

Federal Court (Full Court). Did Lee seek to render the subjective intentions of a child’s parents determinative in relation to the ordinary residence of their child? If not, can it nevertheless be said that the focus in relation to the “ordinary residence” of minors is on the intentions of the parents, and that a reason for this surely was that “a child of tender years has no control over where he or she lives”?

Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?

Federal Court. Can the Tribunal determine for itself that it will not comply with a court order until it is known whether such an order is overturned by a higher court?