Case Law Updates

Federal Court. In the context of administrative law, must a finding that there is a psychological or psychiatric condition be founded upon expert medical or psychological evidence? Was the Minister’s reference to the Applicant’s "psychological sexual issues" a "statement that involved the application of specialist expertise" or that "was not open absent a specialist diagnosis"? Can it be said that "to take account of the fact that he had received a 25% discount in sentencing from the court was to take into account an irrelevant consideration"?

Federal Court (Full Court). Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa? Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries? Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?

Federal Court. Cl 13.1.2(1)(b) of Direction 79 provided that, for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively ... The likelihood of the non-citizen engaging in further criminal or other serious conduct"? Is there a "material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend"?

Federal Court. Where the Minister is statutorily obliged to provide a statement of reasons for his decision, should he "provide a rational and intelligible explanation as to why he chose to give greater weight to some material over other material where it relates to a significant issue which has been the subject of detailed submissions"? Can it be said that "it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because that manner of reasoning would be permissible"?

Federal Court (Full Court). Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?

High Court. Is a visa refusal by reason of ss 501 or 501A a decision under s 65? Is PIC 4001 "void for uncertainty because it used the expression "character test" without definition"? Are delegates "bound by a prior, internally recorded view" about whether visa criteria were met? Can a s 65 officer refer an application for a decision under s 501? Can a single decision under s 65 be segmented into various discrete decisions? Are the Minister's powers under ss 501(1) and 501A(2) "spent ... if a visa should have otherwise been granted under s 65, but has not been granted"? Did the Minister have jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal was invalid?

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?