Case Law Updates

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

Federal Court. Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)? Is a finding that a non-citizen is of good character for the purposes of the Citizenship Act entirely irrelevant to the question whether his/her visa should be cancelled as a result of failing the character test in the Migration Act?

2 decisions of the Federal Court (Full Court). A person fails the character test under s 501(6)(h) of the Migration Act 1958 (Cth) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". Should the court exercise its discretion against issuing the writs of prohibition and declaration in circumstances where the Minister has not yet made a decision involving s 501(6)(h)? Should a court assess for itself whether it is "reasonable" to make that inference?

Federal Court (FCA). Was the Minister allowed to begin his consideration of the matter prior to the FCA's consent orders concerning a decision of a previous Minister being finalised? Was it "inherently unlikely" that the Minister would consider the matter until called on to make a decision, as this would be inefficient for a busy Minister? Can a Jones v Dunkel inference be drawn if the Minister fails to give evidence personally?

Federal Court (Full Court). What is the meaning of "only because" in s 140(2)(a) of the Migration Act 1958 (Cth)? If the Federal Court sets aside an AAT decision to affirm a decision made under s 140 to cancel a visa, is that visa "taken never to have been cancelled", by reason of s 114(1)? Is a visa sponsor obliged under s 104 to notify the Department about a change in circumstance? Was AAT prevented from making decision under s 140(2) by reason of s 140(3)? Was the meaning of "parent" in s 15 of the Births, Deaths and Marriages Registration Act 1995 (NSW) confined to "biological parent"?

Federal Court (Full Court). Is "unwarrantable delay" a "basis upon which, in particular circumstances, any of the remedies sought by the Appellant under s 39B of the Judiciary Act might, in the exercise of a judicial discretion, be refused, in the same way in which the remedies for which s 75(v) of the Constitution provides might be refused"? May a relevant Minister "be taken to have read [a] departmental submission, especially in circumstances where he approved it, wrote brief notes upon it, and signed it"?

Federal Court. Does s 600(6H): preclude the Tribunal having "regard to" particular information, as opposed to the reception of that particular information and, if so, does it necessarily follow that "the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called"; "require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"; always require that prior notice of the source of the information to be presented orally be given?

Federal Court. Was cl 14.2(1)(b) of Direction 79 concerned with the effect of non-revocation, as opposed to revocation, of the cancellation of the non-citizen’s visa? Do cll 14.2 or cl 14.4(1) permit consideration only of the negative impacts on family members of removal of the non-citizen from Australia?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court. Can it be said that, "just because section 473DD requires that a new claim or evidence must not be ‘considered’ does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed"? Does that question assume that s 473DD also prohibits the consideration of new claims, as opposed to only new evidence?