NZ Supreme Court

Bail application, jurisdiction to consider appeal

Signal v R [2020] NZSC 90 (9 September 2020)

Unsuccessful leave application – S charged, along with four others, with murder of one person and assault with intent to cause grievous bodily harm to another, as well as three associated charges -  applied to the HC for bail - application dismissed - Appealed to CA - Appeal dismissed – Sought leave to appeal to SC against CA decision - Appeal to CA  advanced under s 42 of the Bail Act 2000 – SC said no proper basis for it to assert jurisdiction based on CA decision containing an error to the extent that could not be said to be “final” – SC did not have jurisdiction to hear and determine an appeal against CA decision here – Application dismissed.

High Court of Australia

Immigration, character requirement, visa cancellation

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 (9 September 2020)

Unsuccessful appeal from Full Court of FCA – S  born in Vietnam and arrived in Australia on humanitarian visa in 1990 - Visa did not say appellant was entitled to protection under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees - In 1994, S granted Five Year Resident Return visa - Visa cancelled under s 501(3A) Migration Act 1958 which said  Minister must cancel a visa if satisfied that the person did not pass character test because they had substantial criminal record and were serving full-time imprisonment sentence - Section 501CA(4) said Minister could revoke decision to cancel if two conditions met - First was that person made representations in accordance with Minister’s  invitation (s 501CA(4)(a)) - Second Minister satisfied that either the person passed character test or there was another reason why decision should be revoked (s 501CA(4)(b)) - Minister declined to revoke cancellation – S’s judicial review application  and appeal to Full Court unsuccessful - S granted special leave to appeal to HCA on the ground that, when exercising the power under s 501CA(4), Minister obliged to, and failed to, consider whether non-refoulement obligations were owed to the appellant – HCA majority said Minister not required to consider whether Australia owed non-refoulement obligations to S as "another reason" under s 501CA(4)(b)(ii) - Nothing in any of the material S submitted in support of his revocation request indicated or suggested that he now held a subjective or well-founded fear of persecution in Vietnam – Appeal declined.

Defence Force Magistrate, jurisdiction, criminal charges

Private R v Cowen [2020] HCA 31 (9 September 2020)

Unsuccessful application to challenge jurisdiction of Defence Force magistrate to try charge against a member of the Australian Defence Force ("ADF") - On 12 June 2019,  Director of Military Prosecutions ("DMP") charged R with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship - Alleged offending occurred after a birthday party in Brisbane – R was and is a member of the ADF and the complainant, at the time of the alleged assault, was an ADF member - Neither was on duty or in uniform at time of alleged offending – On 26 August 2019, R appeared before Defence Force magistrate on a charge under s 61(3) of the Defence Force Disciplinary Act - R objected magistrate's jurisdiction to hear the charge - magistrate dismissed objection – Said sufficient to confer jurisdiction on a service tribunal that accused a member of the armed forces when offence allegedly committed – R commenced proceedings in HCA original jurisdiction seeking prohibition to prevent magistrate hearing the charge – HCA unanimously said magistrate had jurisdiction - Five Justices said s 61(3) of the Act, in obliging defence members to obey the law of the land, was, in all its applications, a valid exercise of the defence power - Two Justices said s 61(3) valid only in its application to offences which, because of their nature or circumstances of commission, had proven connection with defence force discipline, and that threshold satisfied in the present case.