Case Law Updates

Federal Court. AAT was required to consider under s 501CA(4) whether to revoke the mandatory cancellation of the judicial review time extension Applicant's visa and to take into account the protection of the Australian community, as mandated by Direction 79. Para 14.1 of that direction required decision makers to consider the "impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour". Did the AAT engage in impermissible double counting when it considered the effect of the Applicant's offending both in the context of the protection of the Australian community and in the context of the impact on the victims of the Applicant's offending?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...

Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?

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?