Case Law Updates

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. AAT wrote: "a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily". Was AAT's approach wrong because "cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and ... there is no additional requirement that the applicant be a genuine student"? As studying in Australia would necessarily prolong Appellant's stay, was it wrong for AAT to reason that appellant wanted to prolong her stay? Was AAT required to make a finding in relation to each factor in Direction No 53?

Federal Court. If a decision-maker first states its conclusion and then talks about the evidence concerning that conclusion, does that indicate the decision-maker made the conclusion without considering that evidence? Does s 416 require AAT to refuse to consider the information that was before a previous AAT, or to have regard to the previous AAT's decision, or to take it to be correct? Can AAT adopt or accept the conclusion or the process of reasoning of a previous AAT in whole or in part?

Federal Court (Full Court). In deciding not to revoke under s 501CA(4) the mandatory cancellation of Appellant's visa, Minister found that, in American Samoa and Samoa: English was widely spoken; Appellant and his family would have access to health and welfare services. Could Minister base those findings on common knowledge? Were they so based? Does the materiality test involve a court asking itself whether, in the absence of the error in question, the administrative decision-maker would have made a different decision? In the context of s 501CA(4), does the materiality test involve a balancing or a binary exercise?

Federal Court. When a visa applicant alleges fraud on the part of a representative in the lodgement of a visa application so as to establish that the application was invalid and thus avoid issues with s 48 and PIC 4020, what has to be proven and who bears the onus of proof?

Federal Court. If the parties to litigation agree on a principle, is that principle's precedential force diminished? Further, in Vaitaiki, Teoh was interpreted by: Burchett J as requiring decision-makers to take the best interests of children into account as a primary consideration if no notice to the contrary was given; Branson J as requiring decision-makers to treat those interests as a primary consideration. Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration? If the former: is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act; should the FCA adopt Burchett J's or Branson J's interpretation of Teoh?

Federal Court. Does FCA have jurisdiction to review a delegate's decision to refuse under s 501CA(4) to revoke the mandatory cancellation of a visa made under s 501(3A)? Can the self-represented Applicant's notice of appeal from the Minister's decision be treated, in substance, as: a notice of appeal from the Tribunal's decision; including an application for a time extension under s 477A(2)(a)? How should the FCA approach poorly-cast grounds of judicial review? Is the Tribunal required to conduct hearings in person?

Federal Court. Court ordered that Minister cease to detain the applicant at the Melbourne Immigration Transit Accommodation centre (MITA) due to the risk of covid-19 entering the MITA and then infecting the applicant. In practical terms, this means Minister will need to place applicant at a different detention centre.

Federal Court. s 501CA(3)(a) required Minister to notify non-citizen that visa had been mandatorily cancelled under s 501(3A). s 501CA(4)(b) required Minister to invite non-citizen to make representations seeking revocation of visa cancellation within period prescribed by regulations. Reg 2.52 set out a period of 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a). When do 28 days start to run? Minister gave notice & made invitation on 22 Jun 2017, but Applicant only made representations on 4 Sep 2017. On 11 April 2019, DHA emailed the Applicant a personal circumstances form, giving him 28 days to respond. Did that email constitute a fresh invitation such as to recommence the running of time and re-enliven the Minister’s power? Can Minister consider late representations

Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?