Case Law Updates

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 Might there be cases where a visa application has not been validly withdrawn?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?

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?