Case Law Updates

Federal Court (Full Court). Can it be said, based on a single judge FCA decision, that the "principles of legal unreasonableness, in the sense considered in Li, have no application in the review of a decision... as to the existence of certain facts that satisfy statutory criteria", but only to the review of a discretionary power? Summary of principles concerning review of: state of satisfaction under s 65 for illogicality and irrationality; adverse credibility findings. Can it be said that "the psychological reactions of a couple to their first sexual encounter are matters of common human experience"? Or do those reactions need to be supported by evidence such as psychological evidence? Can it be said that, "if two people give a different account of an event and the evidence of one is rejected, that does not provide a logical basis on which to reject the evidence of the other"?

Federal Court held: leaving aside s 196, it is necessary for officers to hold a reasonable suspicion throughout the period of a detainee’s detention under s 189; the reasonable suspicion must be held by the detaining officer; the tasks of the immigration detention centre case managers in this case fell short of what is required for it to be said that they are detaining a person under s 189; the construction of s 196(4) involve reading it as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”; and despite the fact that, had the Applicant not been unlawfully detained, he should have been lawfully detained anyway, the Applicant was awarded exemplary damages.

Federal Court. Cl 8(3) of Direction 79 provides: "Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa". Must decision-makers make express findings on each of those considerations? When considering under cl 14.5 the extent of impediments if Applicant were removed, AAT found it "appropriate to afford the expectations of the Australian community moderate weight in favour of non-revocation", which expectations had already been considered. Was AAT allowed to double-count those expectations?

Federal Court. Court ordered that Minister cease to detain the applicant at the Melbourne Immigration Transit Accommodation centre (MITA) due to the risk of covid-19 entering the MITA and then infecting the applicant. In practical terms, this means Minister will need to place applicant at a different detention centre.

Federal Court (Full Court). If a decision-maker disbelieves a person on one matter, can it be said that that disbelief might be carried over to affect the decision-maker's disbelief in other matters? If so and if it is established that belief of a person's credibility on one matter was erroneously based, can it be said, in the context of assessing the materiality of an error, that that might convince the decision-maker of the need to revisit its conclusions on other matters?

Federal Court. Subsection 196(4) of the Migration Act 1958 (Cth) read: "if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen". DHA cancelled Applicant's BVA under s 501(3A) and then refused to grant him a protection visa. Was he detained "as a result of the cancellation" of his visa or rather as a result of the visa refusal? Did FCA have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis on the basis that s 196(1) of the Migration Act is not inconsistent with s 23?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?

Federal Court (Full Court). If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2) of the Citizenship Act 2007 (Cth)? Does that Act provide a pathway for all children adopted under Australian law or does it only provide a pathway for children adopted before 22 November 1984?

Federal Court. In an application for an extension of time within which to appeal, should the merits of the appeal be approached at a "reasonably impressionistic" level? Or should the merits of the appeal rather be assessed in a "rough and ready way"? In determining whether to grant leave to rely upon a ground not raised before the primary judge, is it relevant that the grant would "[deprive] the respondent of a right to appeal in respect of the consideration of the issue because any further appeal is only available with leave"?