Case Law Updates

Federal Court (Full Court). Is the jurisdiction of the Federal Circuit Court (FCC) conferred by s 476 of the Migration Act 1958 (Cth) limited to remedies by way of judicial review? Was the power of the FCC circumscribed in the context of the judicial review of migration decisions "because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution"? If the relief sought is "hopeless, inutile and hypothetical", does it mean that the court in which it is sought lacks jurisdiction to grant the relief?

Federal Court. Does it matter for the purpose of s 501(7)(c) the country where a non-citizen is sentenced? Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events? If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?

It is often asserted that courts are not allowed to engage in merits review of administrative decisions. However, according to this Federal Court decision, there are circumstances where courts are allowed to do so. Further, can a 'court ... review an administrative decision for unreasonableness based on a finding of fact, short of there being “no evidence” for the finding'?

Federal Court. Can it be said that indefinite detention may need to be considered as a legal consequence of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) even where Australia’s non-refoulement obligations are not enlivened? Is the finding in NBMZ that decision-makers should consider the legal consequences of a decision limited to the consequence of indefinite detention arising from non-refoulement obligations?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

Federal Court. May a jurisdictional error in the form of a breach of procedural fairness "be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given"?

Federal Court. In assessing, for the purpose of a time extension application within which to bring judicial review proceedings, whether a proposed ground of review has any merit, is the issue to be determined at a relatively impressionistic level?

Federal Court (Full Court). Can the Tribunal act on its personal or specialised knowledge and on matters which are commonly known? Does the discharge of the onus placed on the judicial review applicant to prove that a finding by the Tribunal, which required evidence but was one in respect of which there was not a skerrick of evidence, was material to the outcome require proof that the finding was erroneous?

The Full Court of the Federal Court has unanimously held that 'Brown No 2 was wrongly decided and should not be followed'

Federal Court. Can the power in s 501BA(2) of the Migration Act 1958 (Cth) only be exercised within a reasonable time after the original decision? If so, is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?