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 the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?

Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?

Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?

Federal Court. If a conviction and sentence was sufficient to engage the Tribunal's jurisdiction for the purposes of s 501CA(4)(a)(i) of the Migration Act 1958 (Cth) and other convictions and sentences were not needed to engage that jurisdiction, could the Tribunal go behind those other convictions and sentences insofar as they had a bearing on s 501CA(4)(a)(ii)?

Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?

Federal Court (Full Court). Was it permissible for the Tribunal to conclude that the Appellant's risk of recidivism fell within a broad range, namely "from (1) at best, low-moderate; and (2), more likely, a risk of re-offending that is now little or no different than what it was at the time of his most recent removal from the Australian community"?

Federal Court. Does the "fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer ... mean that the witness is not in a fit state to give evidence"? Is the Tribunal "entitled to expect that a legal representative for a party will assist it in avoiding error"? Is the Tribunal: "bound to receive evidence of little probative value"; entitled "to be selective about the quality and quantity of material it will consider in any case"?

Supreme Court of New South Wales (Court of Appeal). Does a court's failure to properly apply the relevant standard of proof amount to jurisdictional error?