Case Law Updates

Federal Court. The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act? Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?

Federal Court. The Minister purported on 2 occasions to refuse to grant a visa under s 501A. Both decisions were quashed and remitted for determination according to law. Could the same power be exercised a third time by reference to the same facts and circumstances? Does fact that the Minister considered Australia’s non-refoulement obligations in the exercise of his discretion under s 501A(3) mean that the same matters were not weighed in the balance in deciding the question of national interest under s 501A(3)(d)?

Federal Court (Full Court). Should the Tribunal should have considered, in making a decision under s 501C of the Migration Act 1958 (Cth), "the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child", based on the FCAFC's decision in FAK19? Did anything in the nature of the FCA's discretionary power with respect to costs require any particular consideration of pro bono representation?

Federal Court. Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing permanent visa application. Did r 2.08A require the Minister to "ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant"? Must the ‘statement’ required by r 2.08A(1)(c) impliedly be one made in good faith?

Federal Court (Full Court). Does 501CA(1) depend on "the existence of a legally effective decision under s 501(3A) as a precondition for the exercise of...

Federal Court. Was it an irrelevant consideration for the Tribunal to take into account the Appellant's future intentions when determining whether he intended genuinely to stay in Australia temporarily pursuant to cl 500.212(a)(iv) of Schedule 2 to the Migration Regulations 1994 (Cth)?

Federal Court. Does the balance of convenience favour the granting of an interlocutory injunction in circumstances where "it is arguable as to whether or not jurisdiction exists, and in turn whether or not there has been a departure from ministerially prescribed duties"? What is the prima facie position in relation to the costs of an interlocutory application for an injunction?

Federal Court. If the Minister relies on an Adverse Security Assessment (ASA) rather than independently assessing the risk posed by a person, does this amount to dictation? Can the Minister consider non-refoulement obligations as part of the residual discretion under s 501(2)-(3)? Is a decision under s 501(3) or 501C(4) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid? In assessing whether s 501C(4)(b) is met, is the Minister limited to considering the same sub-sections of s 501(6) which founded cancellation under s 501(3)?

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?

Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?