Case Law Updates

Federal Court. Minister found that child pornography offences for which Applicant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? When deciding under s 501CA(4) whether to revoke the mandatory cancellation of a visa, was Minister required to consider that Applicant also held at the same time another visa that would be cancelled by operation of s 501F(3)?

Federal Court (Full Court). Did subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) impliedly confer power on the Minister to approve in writing “another place” of immigration detention? If so, did that power exclude the power to create a de-facto detention centre, which is already provided for in subpara (b)(i) of that definition and s 273 of the Act? Is immigration detention lawful even if the expenditure involved in detaining the appellant was not lawfully authorised?

Federal Court. If AAT receives and accepts medical evidence to the effect that a person is mentally unfit to attend a hearing but that person attends the hearing anyway, can AAT make adverse credibility findings based on oral submissions without meaningfully appreciating that that person's medical condition might have affected those submissions? Further, can it be legally unreasonable to refuse to allow a representative to appear and participate at a Tribunal hearing related to a Part 7-reviewable decision? We summarise the answer to those and many other questions.

Federal Court. Was Principle 6 of clause 5.2 of Direction 110 "concerned with attributing some responsibility or blame to Australia for a non-citizen’s conduct"?

Federal Court. Was it irrational or legally unreasonable for the Tribunal not to identify for the purpose of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) a rational or intelligible basis for not giving any weight to the applicant’s representations as to her family ties in favour of revocation of the mandatory cancellation of the applicant’s visa?

Federal Court. Was the applicant's girlfriend, with whom he had been in a relationship for 1.5 years but only living together for 2-3 weeks and who was neither his spouse nor de facto partner, nevertheless his family member for the purpose of cl 8.2 of Direction 90?

Federal Court. Does the rule in Browne and Dunn, being one of fairness, apply equally to a trial judge as to counsel?

Federal Court (Full Court). Should different passages of written submissions be considered by the AAT it in the context of the entirety of those submissions? If the AAT considers that a factor in Direction 79 weighs strongly in favour of revoking a visa cancellation, can an error in assessing that factor be material in that, had the error not been made, the factor could weighed even more strongly in favour of revocation? Was the effect of non-revocation on the Appellant's mother relevant to cll 13(2)(c), 13.3, 14(1)(b) and 14.2(1)(b) of Direction 79?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?