Case Law Updates

High Court: Although this decision concerned criminal law, it is arguably relevant to migration matters as it provides a summary of modern principles of statutory interpretation.

Federal Court (Full Court). The respondent gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell. Does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?

Federal Court (Full Court): In her visa cancellation revocation request, the Respondent made an "uncontentious assertion" that the sentencing remarks relating to her most recent convictions made no reference to whether those convictions involved drug use. The Minister took that assertion as a denial that those convictions were drug related and inferred that, because of the denial, she was likely to re-offend. Should the Minister have put the Respondent on notice that her "uncontentious assertion" would be critical to his decision?

Federal Court: Applicant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Applicant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Applicant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Applicant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Did AAT make a jurisdictional error?

Federal Court. Is the assessment of whether a ground of judicial review has sufficient merit to justify the grant of leave for it to be agitated for the first time on appeal to be conducted on a "reasonably impressionistic" basis?

Federal Court. Did the Federal Circuit and Family Court (FCC) deny the appellant Minister procedural fairness? Is the question of whether the FCC denied the Minister procedural fairness one of law? If so, is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court: "On my understanding of the majority approach in SZMTA in those circumstances, read with MZAOL, where there is an admitted non-disclosure of the existence of a s 438 notification, there must be a two-step process undertaken by the supervising court on judicial review to determine “materiality” so as to arrive at a conclusion of jurisdictional error".

Federal Court (Full Court). Child applied for child visa. Cl 101.222 of Sch 2 required approval of sponsorship. Sponsoring mother used to live with Mr M, who was not the father of the child, was in prison at TOD, was the father of 2 other children of the mother and gave her financial support. AAT had power under reg 1.20KB(12) to refuse sponsorship if it requested police check for sponsor's de facto partner and such partner did not provide it. Mother denied Mr M was her de facto partner and police check was not provided. Is residence in prison a factor as to whether a couple has a de facto relationship? Should AAT have considered s 5CB? If so, did AAT's speculation that Mr M might want to "visit" his children once released despite its finding that he was in a de facto relationship with the mother indicate it did not consider s 5CB(2)(c) and therefore s 5CB?

Federal Court (Full Court). Does the Minister have a residual discretion to determine whether or not to revoke a decision under s 501CA(4) of the Migration Act 1958 (Cth) if satisfied of either s 501CA(4)(a) or (b) are satisfied? Does the 'another reason' aspect of s 501CA(4)(b)(ii) require that the other reason that carry "sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked"?