Case Law Updates

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?

Federal Court. Assuming that the power in s 501BA(2) of the Migration Act 1958 (Cth) is required to be exercised within a reasonable time, and that such requirement is not complied with, is the consequence that a writ of mandamus might issue to compel the Minister to make a decision, instead of the power being treated as spent through certiorari?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

Federal Court (Full Court). Do the expressions in ss 5L(c)(ii) and 5J(3)(a) of the Migration Act 1958 (Cth) necessarily encompass the same "characteristic"? Assuming that IAA accepted that the Appellant's interest for music and dance was "a characteristic that [was] fundamental to [his] identity", was it open to IAA to find that Appellant could avoid a real chance of persecution by carrying out his activities underground and with caution? Could the IAA have "decided that the appellant’s expression of his interest in music and dance “underground” would not conflict with a characteristic which was fundamental to his identity ... without having made a finding concerning the existence and nature of that characteristic"?

Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?

Federal Court: Are the mandatory considerations arising out s 501 of the Act mandatory considerations in the context of determining whether a person is a "danger to the Australian community" pursuant to s 36(1C)(b)? Was "the possibility that the wish of the applicant ... to have a close relationship with his son would reduce the risk that he would reoffend ... relevant to the assessment that the Tribunal was required to make here"? Is the materiality test backward, or forward looking? Should "the danger referred to in s 36(1C) ... be construed to mean a very serious danger"?

Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?

Federal Court. Para 21 of Practice Direction issued by ATT's President under 473FB concerning IAA included: "Your submissions should be no longer than 5 pages". Para 23 stated that if an applicant wanted to give the IAA new information, he/she must also provide an explanation as to why the information satisfied s 473DD. Para 24 read: "Your explanation should be no longer than 5 pages and must accompany any new information you give to us ". Do the 5 pages in para 21 include the 5 pages in para 24? Is there a page limit to the "explanation" in para 23?

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 Court. In Garland, the Full Court said in relation to para 8.1.1(1)(b)(ii) of Direction 99 that, "where the Direction uses the phrase “vulnerable members of the community” it means members of vulnerable groups in the community; it does not encompass an individual who has physical characteristics or particular circumstances that make them vulnerable vis-à-vis a particular perpetrator". Would the same reasoning apply if the Tribunal said that an applicant's "sheer size would have been most intimidating to the victim"?