Case Law Updates

Federal Court. Was the FCA decision in AJL20 plainly wrong? Was it reasonable for the Department to enable the Applicant's Tribunal review application to be determined before he was in fact removed to Vietnam? Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal"?

Federal Court (Full Court). Is the threshold that must be met by an application that seeks to establish that a non-publication order is 'necessary' under s 37AG(1)(a) of the FCA Act high? Do "mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears" suffice? Is the Court permitted to undertake a balancing exercise? Is the possibility that the Appellant could experience some sort of difficulty obtaining employment on the basis of the publicly available judgment sufficient?

Federal Court (Full Court). Is the change of legal representation on appeal usually sufficient to justify the grant of leave to rely on ground of judicial review not relied on at first instance?

Federal Court (Full Court). If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2) of the Citizenship Act 2007 (Cth)? Does that Act provide a pathway for all children adopted under Australian law or does it only provide a pathway for children adopted before 22 November 1984?

Federal Court (Full Court). Does the word "may" in s 34(2) of the Citizenship Act 2007 (Cth) indicate the existence of a residual discretion? Did s 34(3)(b) contain an objective or subjective jurisdictional fact? If a decision under s 34(2) to revoke a citizenship is set aside by the AAT but the AAT's decision is quashed on the basis of jurisdictional error, was the person whose citizenship was revoked nevertheless an Australian citizen, as a matter of law, from the time of the AAT decision until that decision was quashed?

Federal Court (Full Court). Can it be said that, "for the purposes of the discretion under s 10(2)(b)(ii) [of the ADJR Act], the availability of a full merits review on a de novo basis can constitute “adequate provision” for review and entitle the Court to refuse relief in its discretion"? If so, is the position "perhaps even stronger here where the appellant potentially had available to him two tiers of review in the AAT"?

Federal Court (Full Court). Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4) of Migration Act 1958 (Cth). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive?

Federal Court. In order for illogicality to sound in jurisdictional error in the form of legal unreasonableness, must it be "extreme"?

Federal Court. Can it be said that "the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence"? In Makasa, HCA held that power to cancel visa under s 501(2) was spent by AAT's decision to set aside delegate's original decision. Does Makasa apply to s 501CA(4)? Can the same sentence of imprisonment lead to satisfaction of both ss 501(3A)(a) and (b)?

Federal Court. In order for documents or information to be "before the Minister" under s 473DC(1)(a), is it sufficient that they were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession? Does "the fact that on the day before the SHEV interview the delegate accessed [an electronic document] mean that the [document] was before him when the decision was made"? Does the reasoning in Plaintiff M174 concerning s 57 apply to s 473DE? Was Minister required to file notice of contention on materiality?