Case Law Updates

Federal Court (Full Court). Although referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion, did the Tribunal ask itself the correct question when it searched for "another reason" under the Direction, as the Direction itself referred to that question as involving a discretion? If not, can it nevertheless be said that "the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision"?

Federal Court. Can it be said that indefinite detention may need to be considered as a legal consequence of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) even where Australia’s non-refoulement obligations are not enlivened? Is the finding in NBMZ that decision-makers should consider the legal consequences of a decision limited to the consequence of indefinite detention arising from non-refoulement obligations?

Federal Court (Full Court). Para 8.1.1(1)(a)(ii) of Direction 99 required decision-makers to consider that crimes against women "are viewed very seriously by the Australian Government". Did para 8.1.1(1)(a)(ii) require the Tribunal to consider such crimes "very seriously"? May it be "necessary for the decision-maker to take account of facts alleged to underpin a claim that non-refoulement obligations are owed where those facts are relied upon as another basis for revocation of the cancellation decision"?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?

Federal Court. In the context of the review of a decision under s 501CA(4) of the Migration Act 1958 (Cth), the Minister is obliged to lodge with the Tribunal every document in the Minister’s possession that is ‘relevant to the making of the decision’: s 500(6F)(c). Does it necessarily follow that the Tribunal is under an obligation to at least consider the documents lodged with it under s 500(6F)(c) as relevant documents? In Plaintiff M1, the High Court warned of the danger of labels such as "active intellectual consideration" inviting impermissible merits review. Does the use of such labels necessarily invite merits review?

Federal Court (Full Court). Is "unwarrantable delay" a "basis upon which, in particular circumstances, any of the remedies sought by the Appellant under s 39B of the Judiciary Act might, in the exercise of a judicial discretion, be refused, in the same way in which the remedies for which s 75(v) of the Constitution provides might be refused"? May a relevant Minister "be taken to have read [a] departmental submission, especially in circumstances where he approved it, wrote brief notes upon it, and signed it"?

Federal Court. Can it be said that "the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?

Federal Court. Section 24(1A) of the FCA Act provided that an appeal shall not be brought from an interlocutory judgement unless the FCA gives leave. Does Jackson apply equally to the notice of appeal filed in this case? If so, did the exception under s 24(1C) apply? Did the decision under s 501(3A) of the Migration Act 1958 (Cth) interfere with the sentence and parole orders of the District Court of NSW in violation of the separations of powers?

High Court. The Respondent was successful in defending a an application for special leave to appeal from the Full Court of the Federal Court, with costs. The Respondent then made an offer of compromise, demanding payment of a reduced amount of the costs it was entitled to claim pursuant to the High Court scale of costs. Was the offer valid, with the result that the applicant is required to pay costs on an indemnity basis?

Federal Court. Is Direction 99 inconsistent with s 501CA(4) of the Migration Act 1958 (Cth) "because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]"?