Case Law Updates

Federal Court (Full Court). Is the power to allow an appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below?

Federal Court (Full Court). The Minister found that the Appellant failed to recognise that he had "psychological sexual issues relating to children". Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"? If so, was the adjective "psychological" used by the Minister in its unscientific sense?

Federal Court (Full Court). Should the question of whether the IAA made a jurisdictional error be answered by reference to the circumstances as they existed at the time of its decision? Was the conclusion that Afghanistan had ceased to exist and the Islamic Emirate of Afghanistan had come into existence one about which judicial notice could be taken? Was the existence of a 'receiving country' a jurisdictional fact?

Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?

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)?