Case Law Updates

Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

Federal Court. Did the terrible pressures of time under which the Tribunal was obliged to make its review decision (the 84-day rule in s 500(6L(c)) provide a justification for the Tribunal having failed to take into account the best interests of minor children to be affected by its decision? Is the offence of failing to comply with a request made by the police to supply personal details, per se, contemplated by para 8.1.1(1)(b)(ii) of Direction 90?

Federal Court (Full Court). In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, was it necessary for the judicial review applicant to show that any errors were jurisdictional? In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, is there a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional?

Federal Court (Full Court). Section 501(5) provided that the power in s 501(3) of the Migration Act 1958 (Cth) could only be exercised by the Minister personally. Can it be said that s 501(5) allows a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but does not allow the decision-maker to determine not to consider information which the affected person provided prior to the decision being made?

Federal Court (Full Court). Did Lee seek to render the subjective intentions of a child’s parents determinative in relation to the ordinary residence of their child? If not, can it nevertheless be said that the focus in relation to the “ordinary residence” of minors is on the intentions of the parents, and that a reason for this surely was that “a child of tender years has no control over where he or she lives”?

Federal Court (Full Court). Is an error in the form of legal unreasonableness material to the outcome, by definition?

Federal Court (Full Court). The AAT affirmed a refusal of a nomination application under r 5.19 and then affirmed the corresponding subclass 187 visa application refusal. The visa applicant applied for judicial review of the AAT's visa decision. Did he have standing in court to collaterally challenge the AAT's nomination decision through the application for judicial review of the AAT's visa decision? Did cl 187.233(3) refer to a decision in fact made, even if affected by jurisdictional error? Did r 5.19(4) require that the 'position' be restricted to one geographical location?

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"?