Case Law Updates

Federal Court. To form a "reasonable suspicion" under to s 189, are officers expected to have detailed knowledge of case law on the concept of 'Aboriginality'? Is it likely that "not all Aboriginal peoples will have the same law and custom governing these issues"? Was the officer's suspicion that the Applicant was a non-Aboriginal unlawful non-citizen reasonable, in circumstances where the 2nd & 3rd limbs of the tripartite test in Mabo (No 2) were satisfied? Are Stewart, EFX17, EPL20, and Sillars distinguishable if s 501CA(3) representations are received within the prescribed period?

Federal Court. Are the factors in cl 8.1.1of Direction 90 "exhaustive in the sense of being a closed universe of considerations going to the question of the nature and seriousness of a non-citizen’s conduct"? Can it be said that a reference by an administrative decision-maker to "the balance of probabilities may sometimes properly inform some aspect of the process of reaching the correct or preferable decision, but that there are dangers in taking that approach as it may lead to error"? Is cl 9.4.1(2)(a)(i) only 'causally linked' to cl 9.4.1(2)(a), not to cl 9.4.1(2)(b)?

Federal Court. A delegate refused to grant the Applicant a subclass 309 (partner) visa under s 501 of the Migration Act 1958 (Cth). Can it be said that the refusal is not a Part 5-reviewable decision, with the result that s 359AA did not apply to the review? If so, was the Tribunal nevertheless required to comply with the well-established common law principle of procedural fairness?

Federal Court. If the department acts upon a visa application withdrawal request, does that act amount to a 'decision', with the result that the Federal Circuit Court has jurisdiction to review such a decision? Might there be cases where a visa application has not been validly withdrawn? If so, will the appropriate remedy will be mandamus to compel the Minister to consider the application? Will the withdrawal of a visa application be invalid and ineffective if there was no genuine intention to withdraw the application?

Federal Court. Is the Tribunal "confined to whatever may have been the issues that the delegate considered"? In other words, is the Tribunal confined to considering the same visa criteria assessed by the delegate?

Federal Court. Do the words used in s 196(4) "contemplate proceedings limited to judicial review of a visa cancellation decision"? Can it be said that "s 196(1) applies to a person who is in fact an unlawful non-citizen, or that reliance on s 196(4) assumes the person is, in fact, an unlawful non-citizen"? Is s 196(2) to the effect that "s 196(1) does not prevent the release from immigration detention of a person who is, as a matter of fact, a citizen or a lawful non-citizen"?

Federal Court (Full Court). The Minister found that child pornography offences for which the Appellant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? Was Dunn v Minister for Immigration and Border Protection [2016] FCA 489 wrongly decided?

Federal Court (Full Court). May a person "engage in some religious practices of a particular faith without being a doctrinal adherent of that faith", such as Christianity? If so, can it be said that "a persecutor might nevertheless perceive the person to be a Christian, or perceive the person’s practices to be blasphemous, and may, accordingly, persecute the person for the reason of religion"?

Federal Court (Full Court). Is "the violation of international law ... intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation" under s 501A(2)? If not, does this answer "create any relevant incongruity with a finding that a failure to consider those obligations in a particular case ... means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense"? Does the Minister have a discretion under s 501A(2)?

Federal Court. Was a visa validly granted because it was granted in accordance with the conclusions of a court, despite the fact that those conclusions were later on overturned? Must the operation of s 67(4) be read subject to the proviso that an invalid granting of a visa, even if recorded, is of no effect? Is it necessary to read into s 172(1)(c) the requirement that the granting of a substantive visa be a valid exercise of power?