Case Law Updates

Federal Court (Full Court). Section s 501(3)(d) of the Migration Act 1958 (Cth) required cancellation of the Appellant's visa to be in the national interest. Can it be said that, although past criminal conduct is usually established by the fact of conviction, "that is not to say that evidence of conviction or evidence of conduct that is criminal to the criminal standard is necessary before it is open to the Minister to be satisfied that cancellation of a visa is in the national interest"?

Federal Court. Is an application to set aside a notice of discontinuance filed in the Circuit Court interlocutory in nature, with the result that leave is required to appeal against the discontinuance? If so, will leave "only be granted where the decision below is both attended with sufficient doubt to warrant it being considered by a Full Court, and would result in substantial injustice if leave were refused, supposing the decision to be wrong"?

High Court. Should statutory provisions be interpreted, so far as possible, to be consistent with international law, particularly where a provision seeks to give effect to matters of international law? Is the primary object of statutory construction to "construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute"?

Federal Court. The applicant was notified that his visa was cancelled under s 501(1) of the Migration Act 1958 (Cth). About a month later, upon request, he received a second notification of the same cancellation, as he lost the first one. Did the second notification reset the deadline under s 500(6B) for the making of a valid Tribunal application?

Federal Court (FCA). If the FCA does not have jurisdiction to determine a judicial review application of a migration decision filed with it but the Federal Circuit and Family Court (FCFC) does, does the FCA nevertheless have power to transfer that application to the FCFC?

High Court. Is the existence of a duty to afford procedural fairness a question of statutory interpretation? Is there a "strong" common law presumption, "generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness"?

Federal Court. Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect? Is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?

Federal Court (Full Court). Did para 9.2(1)(a) of Direction 90 require that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph? Can it be said that para 9.3(1) applied "only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia"?

Federal Court. Is a failure to disclose other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision fatal to the latter proceeding?

Federal Court (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?