Case Law Updates

Federal Court (Full Court). Appellant applied to FCCA for judicial review (JR) and extension of time within which to apply for JR. In dismissing time extension application, FCCA engaged in more than an impressionistic evaluation of merits of proposed grounds of review. Did FCCA make jurisdictional error by doing so? Can FCCA hear applications under ss 476 and s 477(2) together? Was the FCCA's error not material in that, had it not misconceived s 477(2), it would have decided the JR application against Appellant anyway?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

Federal Court. In Ibrahim, FCAFC had held that Assistant Minister conflated Australia’s non-refoulement obligations under international treaties with the protection obligations under the Migration Act 1958 (Cth), thus vitiating decision under s 501BA(2) with jurisdictional error. Does the same principle apply to decisions under s 501(2)? Here, did Assistant Minister incorrectly assume that Applicant’s claims would be considered in the same way if he applied for a protection visa, as the circumstances in which consideration of non-refoulement occurs are very different as between the determination of a visa application under s 65 and the exercise of the discretionary power in s 501(2)? Does Direction 75 require that the protection criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa?

Federal Court. In a balancing exercise involving s 501CA(4) and Direction No 79, although almost all factors went in favour of revoking the mandatory cancellation of the Applicant's visa, the balance ultimately tilted against revocation. Does the fact that almost all factors went in favour of revocation deny the materiality of any errors made by AAT? In other words, could it be said that the materiality test involved a balancing (not binary) exercise in that, had the error not been made, even more weight could have been placed in favour of the Applicant, which in turn could have tilted the balance in his favour?

Federal Court. In HZCP, FCAFC had held: "The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself". Can decision-makers question and explore matters surrounding the fundamental facts of the conviction and sentence?

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. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

Federal Court. Non-citizen won a judicial review application at FCCA and was awarded legal costs. As non-citizen was represented on a pro-bono basis (no win no fee), those costs would effectively be paid to his lawyers. However, Minister appealed FCCA's decision to FCA and applied for a stay order relating to that costs order. Should the court infer, based on the fact that the non-citizen was represented on a pro-bono basis and some other factors, that he would not have the money to pay the Minister's legal costs if the Minister is ultimately successful on appeal, in the absence of direct evidence regarding the non-citizen's financial position? If so, should that inference justify the grant of a stay order?

Federal Court. Cl 8(3) of Direction 79 provides: "Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa". Must decision-makers make express findings on each of those considerations? When considering under cl 14.5 the extent of impediments if Applicant were removed, AAT found it "appropriate to afford the expectations of the Australian community moderate weight in favour of non-revocation", which expectations had already been considered. Was AAT allowed to double-count those expectations?