Case Law Updates

Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?

Federal Court. Can administrative decision-makers draw on their own experience and expertise? The Federal Court answered that question as follows: Extract EHV18 v Minister for Immigration, Citizenship,...

High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?

Federal Court. In an application for habeas corpus, is the issue "whether the applicant’s current detention is unlawful, not whether his or her detention has been unlawful in the past"? If a person is lawfully placed in immigration detention for a permissible purpose but that purpose is lost, with the result that detention becomes unlawful, can the detention regain that permissible purpose and therefore its lawfulness?

Federal Court. The Minister purported to cancel tje Appellant's visa under s 501(2), but that decision was quashed in court. The Minister then purported to cancel the Appellant's visa under s 501(3), but that decision was also quashed in court. The Minister eventually cancelled the visa under s 501(3) 'again'. Is the power to cancel a visa under s 501(3) spent if the Minister previously exercised the power to cancel under s 501(2)?

Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?

Federal Court (Full Court). Cl 14.4(1) of Direction 79 required decision-makers to consider, under s 501CA(4), the "impact of a decision not to revoke" the mandatory cancellation of a visa on members of the Australian community, including victims and relatives of victims of the former visa holder. Should cl 14.4(1) be interpreted as referring to the impact of a decision to revoke, as opposed to the impact of a decision not to revoke?

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. IMMI 17/016 specified that applications for a Aged Dependent Relative (Class BU) visa had to be made by post or "delivered by courier service". Did the delivery by an employee of the Appellant's law firm satisfy the latter requirement? Or was it necessary for the delivery to be made by a private company that provides courier delivery services, with the result that the application delivered by that employe was invalid?

Federal Court. Can the test concerning the materiality of an error be expressed in the following way: "absent a Court being satisfied that, but for the breach, there is a reasonable possibility that different outcome could have been reached by a decision maker, a failure to accord natural justice will not be jurisdictional error"?