Case Law Updates

Federal Court. The Appellant appealed to the FCA from an FCCA decision and raised a new ground of judicial review for the first time on appeal. Should the FCA refuse leave to run the new ground on the basis that, if leave were granted, the Minister would suffer as he would have no practical right of appeal to the HCA?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?

Federal Court. In an FCA decision we recently summarised, the Minister's application for leave to appeal from a decision where he was ordered to answer an interrogatory aimed at determining whether he had turned his mind to a decision was dismissed. In a different case extracted in this article, one of the questions to the FCA was whether it should use its discretion to refuse to grant leave to the Applicant for an interlocutory application seeking a very similar interrogatory, because of the “impracticalities” presented by the possibility of portfolio Ministers being overwhelmed with interrogatories.

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?