Case Law Updates

Federal Court. Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they can cause the type of harm contemplated by cl 9.1.2(2)(a) of Direction 79? Does cl 9.1.2(2)(a) call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?

Federal Court. In Australia, it a matter of "ordinary human experience" that a copy of an arrest warrant may be left with a third party connected to the suspected offender? Are the laws of a foreign country relating to the issuance of arrest warrants a matter of "ordinary human experience"?

Federal Court. In AJL20, the FCA held that, as the duty to remove a non-citizen from Australia under s 198 of the Migration Act 1958 (Cth) is not country specific, the attempts to remove a person should not be limited to their home country. What factors informed the answer to the question of whether the Minister discharged the duty to remove the Applicant as soon as reasonably practicable? Was AJL20 plainly wrong?

Federal Court (Full Court). Secretary provided the IAA with allegations from police and police's decision not to prosecute the Appellant. Those materials were irrelevant to the IAA's task and the Appellant knew they had been provided. The IAA afforded the Appellant an opportunity to address the allegations in those materials, accepted 'new information' from him that no charges would be laid, recognised that the police materials were irrelevant and expressly said it gave them no weight. Was there nevertheless a reasonable apprehension of subconscious bias? Does a reference to relative safety necessarily bespeak error?

Federal Court. Does the term 'immediate family' under cl 14.2 of Direction 79 include parents? If a decision-maker finds one of the factors in Direction 79 in favour of a non-citizen, but the weighing exercise called for by s 501CA(4) nevertheless results in a finding that there is not 'another reason' to revoke a mandatory visa cancellation, can an error in assessing that factor be material in that, had it not been made, additional weight could have been placed on that factor, which could have tipped the scales in the non-citizen's favour?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court. If DHA identifies an AAT decision, prepares a brief to the Minister consisting of a decision record setting aside the Tribunal's decision under s 501A(2) and an invitation to circle an option indicating that he adopts that decision record as his own or to circle an option indicating that he does not set aside the Tribunal's decision, and the Minister circles the former, is this sufficient evidence to warrant orders that the Minister answer an interrogatory aimed at determining whether the Minister turned his mind to the decision? Was the interrogatory a fishing expedition?

Federal Court (Full Court). Did cl 14.1(2) and (6) of Direction 79, which conflicted with ss 197C and 198 of the Migration Act 1958 (Cth), effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia? Is the damage to Australia's reputation if it refoules a person a mandatory consideration for the purposes of s 501CA(4)?

Federal Court. Are the procedural fairness duties affected by whether a Tribunal applicant is represented? Is the duty to consider claims not clearly articulated, but which arise tolerably clearly from the material before the Tribunal, affected by whether a Tribunal applicant is represented? Was reliance on ss 36(2)(b) or (c) tolerably clear? Are those 2 provisions a 'time of decision' requirement?

High Court. FCCA delivered ex tempore reasons to respondent, who did not speak English. The orders were translated, but not the reasons. Respondent did not receive or request a copy of the transcript of the ex tempore reasons and appealed to FCA before statutory deadline. Written reasons were delivered after such deadline, but well before FCA's decision. Are the procedural fairness requirements in the context of a particular decision directed to the process that occurs before the decision is made, but not after it? In other words, is the obligation to provide reasons related to procedural fairness requirements?