Case Law Updates

Federal Court: In Ibrahim, FCAFC held that Minister was not prohibited from affording natural justice under s 501BA(2). In Burgess, FCAFC held that Ibrahim applied to s 501(3). Were Ibrahim or Burgess wrongly decided? If the Minister's decision record disclosed no error in the interpretation of the above provision, but the Minister admits that error in court, does that mean that the decision record should be ignored in determining whether the Minister made a jurisdictional error? Did the transfer of the Applicant between immigration detention centres amount to false imprisonment?

Federal Court: Minister was considering whether to cancel the Applicant's visa under s 501(2). Applicant stated that "there was targeted violence [in South Sudan] against the Nuer ethnic community of which the applicant is a member, including killings, abductions, unlawful detentions, deprivation of liberty, rape and sexual violence". Minister accepted that the Applicant "would face hardship arising from famine and civil war were he to return to South Sudan". Did the Minister engage with the Applicant's representations?

Federal Court. Was cl 14.2(1)(b) of Direction 79 concerned with the effect of non-revocation, as opposed to revocation, of the cancellation of the non-citizen’s visa? Do cll 14.2 or cl 14.4(1) permit consideration only of the negative impacts on family members of removal of the non-citizen from Australia?

Federal Court. IAA affirmed DHA's decision and FCCA dismissed judicial review application. Appellant appealed to FCA, which heard appeal and reserved judgement on 30 May 2019. On 21 Dec 2020, Minister filed affidavit affirming that Appellant departed Australia on 13 Aug 2019, was still offshore and that his BVE ceased to be in effect. Appellant held no visa to re-enter Australia. Did Appellant abandon the appeal by leaving Australia?

Federal Court. In NZYQ, the High Court overruled its decision in Al-Kateb. Here, at the time of the Minister's decision, Al-Kateb was still considered good law. Did the Minister's reliance on Al-Kateb shield his decision from jurisdictional error, as it represented the law at the time? Or has NZYQ rather overruled Al-Kateb ab initio (i.e. with retrospective effect)?

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?

Federal Court. Should the determination of whether a representative’s email address was provided for the purpose of one matter but not another be determined objectively, without considering the subjective intention? Can an authorisation to receive documents in relation to a business monitoring survey constitute an authorisation to receive documents in relation to a NOICC?

AAT: "[The agent] failed to properly supervise her [employee] and failed to put in place systems to protect clients from repeated wrongdoing by the Company’s employee".

Federal Court (Full Court). Is the question of whether a person qualifies as “a parent” under s 10B(1) of the Australian Citizenship Act 1948 (Cth) a question of fact to be determined by the Court? Can it be said that, "absent a biological parental relationship, parentage typically is a matter of intense commitment which involves acknowledging that other person as one’s own child"?

Federal Court: This decision is arguably relevant to migration matters in general. Applicant's Newstart allowance was cancelled by Centrelink. He applied to AAT for merits review, arguing why the allowance should not be cancelled under s 80 of the Social Security (Administration) Act 1999 (Cth). Without notice to the Applicant, AAT affirmed cancellation decision based on s 95 of that Act. In Alphaone, FCA had held that the procedural fairness rule did not require decision-makers to reveal their "thought process". Was the reliance on s 95 instead of 80 a "thought process"?