Case Law Updates

Yet another matter remitted by the AAT to the Department based on DFQ17. In DFQ17, the Full Court of the Federal Court held that a "late" Tribunal application was actually not late as the Department's notification letter did not clearly convey the deadline for a valid Tribunal application.

Federal Court (Full Court). Did s 33(1) of the Acts Interpretation Act 1901 (Cth) apply to s 501CA of the Migration Act 1958 (Cth), with the result that the Minister had the power, after having issued an invitation under s 501CA(3)(b), to issue another invitation that was effective for the purposes of s 501CA(4)?

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 (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?

Federal Court (Full Court). The Full Court summarised the legal principles concerning s 501CA(4)(b)(ii), which provides as follows: "The Minister may revoke the original decision [to mandatorily cancel a visa under s 501(3A)] if ... the Minister is satisfied ... that there is another reason why the original decision should be revoked".

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)?

Federal Court (Full Court). If the Minister failed to correctly crystallise in his invitation the deadline for making representations to seek the mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth), is that failure immaterial if the Minister considered the representations made in any event? Can it be said that an aggregate sentence of imprisonment was not a single sentence to a term of imprisonment for the purpose of s 501(7)(c), with the result that the cancellation was invalid?

Federal Court (Full Court). If a party applies for judicial review of a decision of the AAT but does not join the AAT as a party to the proceedings, is that necessarily fatal to those proceedings? Does the bare fact that a non-citizen is self-represented at the Tribunal and in immigration detention during the AAT hearing amount to a denial of procedural fairness?

High Court. Is a non-disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) "new information" within the meaning of s 473DC? If so and the IAA treats a certificate as valid and exercises the power conferred by s 473GB(3)(a) to have regard to the information protected by the certificate, can the IAA be taken to have considered that the certificate itself "may be relevant" within the meaning of s 473DC(1)(b)?

Federal Court: Certiorari lies for errors of law on the face of the record (ELFR), whether or not those errors are jurisdictional (Kirk). However, under s 474, certiorari does not lie for ELFR for privative clause decisions (PVC). As a result, certiorari lies for PVC only if the error is jurisdictional, despite the fact that reasons of admin decision-makers comprise the record. FCCA orders comprise the record (DMI16), although its reasons do not (Craig). Appeals to FCA of FCCA decisions to dismiss applications for time extension are precluded by s 476A(3). Thus, FCA can only set aside those decisions under s 39B of Judiciary Act 1903 and if FCCA made a jurisdictional error or if there are ELFR in FCCA decisions. Does the materiality test apply to ELFR in FCCA decisions? If FCCA's reasons state the orders to be made, does record incorporate those reasons? Do the "alleged jurisdictional errors of the Tribunal become jurisdictional errors of the" FCCA?