Case Law Updates

Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

Federal Court (Full Court). The respondent was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the respondent was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the respondent failed the character test?

High Court. In Thornton, the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) precluded consideration of offences committed in Queensland by the respondent to that case when he was a child in the determination of whether to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). Does Thornton apply to offences committed by children in NSW?

Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?

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 (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?

High Court. Is para 8.2 of Direction 90 invalid, based on the proposition that "family violence can be relevant only to the protection of the Australian community (under para 8.1) or to the expectations of the Australian community (under para 8.4)"? Does the attribution of weight to family violence under paras 8.1, 8.2 and 8.4 involve double counting?

Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?

Federal Court (Full Court). Should decision-makers, when addressing the consideration in para 13.3 of Direction 79, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?

Federal Court (Full Court). In Katoa, the High Court held that, in determining whether to extend time under s 477A(2) of the Migration Act 1958 (Cth), the Federal Court was not limited to a reasonably impressionist level of assessment of the merits of the judicial review application. Does Katoa apply to s 477?