Case Law Updates

Federal Court (Full Court). Did the Tribunal have the power, in reviewing a refusal to grant the Respondent a SHEV, to determine whether the Minister had made a jurisdictional error in granting him a temporary safe haven visa under s 195A? Is it an implied condition that the state of mind called for by s 195A, namely that the Minister thinks that it is in the public interest to grant the visa, be formed on the basis of a correct understanding of the law?

Federal Court (Full Court). Does 501CA(1) depend on "the existence of a legally effective decision under s 501(3A) as a precondition for the exercise of...

Federal Court (Full Court). Section s 43(2B) of the AAT Act provided that written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Is a failure to give reasons as required an error of law?

Federal Court (Full Court). If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2) of the Citizenship Act 2007 (Cth)? Does that Act provide a pathway for all children adopted under Australian law or does it only provide a pathway for children adopted before 22 November 1984?

Federal Court: In NBMZ, FCAFC held: Minister had to consider legal consequences of s 501 cancellation;  lack of reference to them led to inference they were ignored. In Taulahi, FCAFC held: NBMZ was about direct & immediate consequences (whether or not obvious) and applied to any statutory power. Did Cotterill broaden the principle in NBMZ & Taulahi to include the "real possibilities" of what might flow from a decision? Do those cases  apply to s 501CA? If so, was Minister required to consider mere possibility that Applicant was stateless and thus subject to indefinite detention? Should we infer Minister knew the way Act operates as he acknowledged Applicant could apply for protection visa and issued Direction 65, which contemplated indefinite detention?

Federal Court. Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)? Is a finding that a non-citizen is of good character for the purposes of the Citizenship Act entirely irrelevant to the question whether his/her visa should be cancelled as a result of failing the character test in the Migration Act?

Federal Court (Full Court). Can the literality of words of judgments be interpreted as if they were the text of a statute? Can secondary materials such as an explanatory memorandum only be looked at if the text of a statute is ambiguous?

Federal Circuit and Family Court. The AAT's reasons copied many passages from the reasons of the very decision under review. Did the AAT fail to turn its own independent mind to the consideration of the case? Did the lack of disclosure of its intended reliance on those passages amount to a denial of procedural fairness?

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. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?