Case Law Updates

High Court. Delegate: interviewed Appellant in person and audio recorded it; was convinced, based on demeanour, that Appellant's evidence during interview was plausible and...

Federal Court (Full Court). A FCCA judge said in his reasons that he had relied extensively on the draft reasons made by another judge in preparing his judgment. Was lack of disclosure of draft reasons to Appellant contrary to procedural fairness rules? If so, should costs order below be reversed? Is a continued adulterous relationship determinative of whether definition of "spouse" in s 5F(2)(b) is satisfied? If not, is is at least an exclusionary factor? Is the absence of consent to adultery determinative of whether s 5F is satisfied? If not, is it at least a factor? AAT failed to reveal existence of invalid s 375A certificate containing dob in. Was that failure immaterial, as Appellant was aware of existence and gist of dob in through an FOI and did not make a s 362A request? Does materiality test require judicial review applicant to prove what they would have done had error not been made?

Federal Court. Does “giving” a document within the meaning of r 5.02 require “actual delivery” to detainee or authorised person? The definition of "immigration detention" under s 5(1) includes "being held by, or on behalf of, an officer ... in a prison or remand centre of the Commonwealth, a State or a Territory". Does the mere fact that a State prison can be a place of immigration detention mean that a person there held is in immigration detention? Does the cancellation of a person's visa while that person is in criminal detention itself convert the criminal detention into immigration detention? Was the Applicant's last residential address known to the Minister the address where he was serving a prison sentence? Was BDS20 plainly wrong?

OMARA. Did the practitioner facilitate payments to a sponsor in exchange for a visa applicant’s employment and sponsorship? If so, did she act in contravention of ss 245AR and 245AS?

Federal Court. Minister: cancelled Applicant's child visa under s 501; detained him under s 189; refused to grant him a protection visa, despite finding he was owed protection; declined to consider granting him a visa under s 195A. Minister accepted that, from 26 July 2019, he was required to remove Applicant from Australia as soon as reasonably possible, due to s 198(6). Until the FCA decision on 11 Sep 2020, Minister had not removed him, but kept him detained. FCA held that, although s 196(1)(a) says an unlawful non-citizen (UNC) must be kept in detention "until" he/she is removed under s 198, detention is unlawful after the first point at which point removal becomes reasonably possible. Minister said that removal was not reasonably practicable, as that would breach international non-refoulement obligations. FCA held that that breach was a moral, but not a legal, justification, given s 197C. As a result, FCA ordered Applicant's release, despite the fact he still was a UNC.

Federal Court. Does the word "may" in s 501CA(4) give decision-makers a residual discretion to refuse to revoke cancellation even if there is "another reason" to revoke? Could Applicant's actions negate the conclusion that revocation is in the best interests of his children or reduce the weight to be placed on those interests? How should the tension between DNQ18 and PQSM regarding the materiality test be resolved? If AAT made error, was error material (and thus jurisdictional)?

Federal Court. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?

High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?

Federal Court. Paragraph 34(3)(b) of Citizenship Act 2007 provided citizenship revocation could not occur if "the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country". Is the question whether Applicant would become “a person who is not a national or citizen of any country” a jurisdictional fact, so that the Court can and should answer that question for itself? Is s 34(3)(b) a limitation upon, as opposed to a precondition for, the exercise of the power to revoke citizenship?

Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material?