Case Law Updates

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?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

Federal Court. If the Tribunal suggests that it will consider only a subset of the issues considered by the delegate but in reality also considers other issues considered by the delegate, is it under an obligation under s 360(1) to "invite the applicant to give evidence and present arguments relating to [those other] issues"?

Federal Court. Does the principle according to which a failure on the part of an administrative decision-maker to make an obvious inquiry can be a ground of judicial review apply both s 5(2)(g) of the ADJR Act and an analogous jurisdictional error? What are the circumstances in which a court can receive evidence on judicial review? In public law, is the jurisdictional error ground of "fraud" confined to that of the decision-maker, a party, or a party’s representative?