Federal Court and High Court Summaries – 10 December 2020

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 4616,
High Court of Australia
Kiefel CJ; Bell, Keane, Gordon & Edelman JJ
Migration law – ‘registered migration agent’ (agent) provided submissions on behalf HK16 and DUA16 – ‘common ground’ conduct of agent fraudulent – in each case Authority unaware of agent’s fraud – Full Court of the Federal Court of Australia, in each case, found Authority’s decision vitiated by agent’s fraud – Minister appealed – Minister contended fraud not ‘shown to have any effect on a statutory function’ – CHK16 and DUA16 each sought, by notices of contention, to uphold decision of Full Court on basis Authority was ‘legally unreasonable’ in not exercising ‘power to obtain; from agent ‘corrected submissions, involving potentially new information’, when Authority knew submissions ‘concerned the wrong person either entirely or in part’ – Pt 7AA Migration Act 1958 (Cth) – held: fraud of agent did not vitiate decisions – in respect of CHK16, Authority legally unreasonable in not exercising power to invite provision by agent of ‘correct submissions containing any new information’ – in respect of DUA16, not legally unreasonable in failing ‘to seek new information’ – held: appeal in case of DUA16 allowed – appeal in case of CHK16 dismissed.
Minister for Home Affairs
Hempenstall v Minister for Home Affairs [2020] FCAFC 216
Full Court of the Federal Court of Australia
Rares, Nicholas & Burkey JJ
Migration law – Minister, pursuant to s501(2) Migration Act 1958 (Cth), cancelled appellant’s class BF transitional (permanent) visa on basis appellant did not pass ‘character test’ – appellant, before Kenny J, of Federal Court of Australia, contended he was not accorded procedural fairness – Kenny J dismissed judicial review application – appellant appealed – whether primary judge correct in finding ‘potential for future substance abuse was not the sole significant factor’ weighing against appellant – whether primary judge correct in dismissing appellant’s contention of failure by Minister o accord appellant procedural fairness ‘by not specifically drawing attention to his need to deal with the possibility of his future substance abuse’ – whether failure to accord procedural fairness arising from failure to draw ‘critical issue’ to appellant’s attention for appellant ‘to specifically address’ – Degning v Minister of Home Affairs [2019] FCAFC 67 – Minister for Home Affairs v Smith [2019] FCAFC 137 – Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; (2018) 265 FCR 177, held: appeal dismissed.

Source:  https://benchmarkinc.com.au/web/

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