Case Law Updates

Federal Court (Full Court). Does the word "may" in s 501CA(4) indicate a discretion? Was AAT obliged to consider best interests of minor children, even if those interests were not advanced by the appellant? If so, can it nevertheless be said that AAT "is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised"? If a child who is not a NZ citizen is granted a subclass 444 visa under s 78(1), does it immediately cease to have effect? If a person's visa is cancelled under s 501(3A), is a visa granted to their child under s 78 cancelled by operation of s 140(3)? If so, does the revocation of a visa cancellation under s 501CA(4) have the effect of nullifying a consequential cancellation under s 140(3)? Does Teoh still have work to do?

Federal Court. Should the words in brackets be read into cl 6.3(5) of Direction 79: "Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life [or their adult life], or from a very young age"?

Federal Court. Can it be said that, "once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case"? Were the circumstances of this case, where the applicant was a self-represented litigant seeking habeas corpus, exceptional? Can it be said that "abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame"?

Federal Court (Full Court). Does the question of the materiality of an error typically (although perhaps not necessarily) arise only once a court is satisfied that the administrative decision-maker exceeded its jurisdiction in some way? Is an administrative decision-maker "relieved of its obligation to consider [a person's] contentions simply because they were not made good on the evidence"?

Federal Court. In an application for an extension of time within which to appeal, should the merits of the appeal be approached at a "reasonably impressionistic" level? Or should the merits of the appeal rather be assessed in a "rough and ready way"? In determining whether to grant leave to rely upon a ground not raised before the primary judge, is it relevant that the grant would "[deprive] the respondent of a right to appeal in respect of the consideration of the issue because any further appeal is only available with leave"?

Federal Court. Can it be said that, "where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category"?

Federal Court (FCA). Can it be said that, "in the ordinary course all issues of fact and law should be determined at the one time and that the [FCA] should generally exercise the power in r 30.01 of the Rules cautiously and sparingly"? 

Federal Court. For the purpose of cl 14.5 of Direction 79, do the factors to be taken into account include any social or economic support available to the non-citizen in the country to which they would be returned in the event of non-revocation under s 501CA(4) of their visa cancellation?

Federal Court. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?