Case Law Updates

Federal Court. In order for the Minister to personally made a decision under s 501CA(4), must he be "briefed with an accurate and sufficient summary of the matters raised by the representations or ... undertake the consideration of the representations personally"? Can it be inferred from the form of the reasons (i.e. circling 1 of 3 options) that they were the means by which the Minister was briefed, with the result that "the matters that are known to the Minister are only those matters expressed in the reasons"?

Federal Court (Full Court). Does the subject matter of s 501 of the Migration Act 1958 (Cth) deals completely, and thus exclusively, with the subject matter of PIC 4003(b) of Schedule 4 to the Migration Regulations 1994 (Cth), with the result that PIC 4003(b) detracts from or impairs the operation of s 501?

Federal Court (Full Court): 'Modern Australian society’s cultural awareness... should be at the very foundation of a decision which affects Aboriginal family and community'

Federal Court (Full Court). Can a subclass 485 visa applicant who nominated a visa stream in the visa application form seek to satisfy the criteria in Schedule 2 of the Migration Regulations 1994 (Cth) for the other stream?

Practitioners are being asked questions from several clients who are or have been in China recently or who intend to visit that country. Whether they will be allowed to enter Australia and whether their visas will be cancelled depend on the circumstances of those individuals, including their immigration status and where and when they have been in China. We have classified the circumstances of those individuals in 3 main groups, which we summarise in this article. We further discuss the legislative powers used to cancel visas and to prevent non-citizens (and even Australian citizens in some cases) from entering Australia. We also explain why, if the situation deteriorates, even permanent residency (PR) visas could be cancelled. Although PR cancellations seem unlikely at this stage, practitioners should consider warning clients of that risk and how to mitigate it.

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

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 (Full Court). "[C]an a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality"? Can the "significant harm" arise from the act of removal from Australia itself? If not, might rendition be an exception? If the Federal Circuit Court (FCCA) "considers any 'doubt' attaches to a decision of [the Federal Court]", is the FCCA bound to follow that decision"? Can the mental harm that would flow from the separation from relatives or self-harm constitute "significant harm"?

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. Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?