Case Law Updates

Federal Court. Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information” (i.e. information that is not capable of being believed)? If so, can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?

High Court. Does the fact that s 494AB(3) prohibits bringing certain matters in FCCA mean HCA cannot remit them to FCCA? Is the HCA and FCCA's jurisdiction for granting habeas corpus implied under s 75(v) of the Constitution? Plaintiff also sought a declaration that it is in the public interest for Minister to consider exercising power under s 197AB. Because of s 476(2)(d), a decision not to consider the exercise of the Minister's power under s 197AB is not reviewable by the FCCA. As the declaration sought does not involve such a decision, does FCCA have jurisdiction to make that declaration?

Federal Court. Was a visa validly granted because it was granted in accordance with the conclusions of a court, despite the fact that those conclusions were later on overturned? Must the operation of s 67(4) be read subject to the proviso that an invalid granting of a visa, even if recorded, is of no effect? Is it necessary to read into s 172(1)(c) the requirement that the granting of a substantive visa be a valid exercise of power?

Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?

Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

Federal Court (Full Court). Under s 5 of the Migration Act, an "excluded fast track review applicant" includes a fast track applicant who "has made a claim for protection in a country other than Australia that was refused by that country". If a protection visa application is refused and the delegate forms the view that the applicant is an excluded fast track review applicant, that refusal is not subject to merits review. Can it be said that "the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia"?

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)..." Does para 14.5 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .