Materiality test explained

Federal Court. An error is only jurisdictional if material to the decision. Is the materiality test about whether the decision would (as opposed to could) have been different had the error not occurred? If the question is about whether the decision could have been different: is there a need to make any further assessment of the likelihood of the decision being different had the error not occurred; does that mean that an error can always be surgically removed from the decision-maker's reasons, leaving the framework surrounding it intact?

Part 2: Double counting?

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

s 91X: duty of imperfect obligation?

Federal Court (Full Court). Can it be said that "s 91X of the [Migration Act 1958 (Cth)] gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief"? We summarise the answer to this and several other questions.

s 501(2): re-exercising discretion based on new offence?

Federal Court. In Brown & Makasa: delegates cancelled visas under s 501(2); AAT set aside cancellations; Minister then personally exercised discretion to cancel under s 501(2) based on the same offences; court held power to exercise discretion under s 501 based on the same offences was spent by delegates' decisions. Here, discretion to cancel under s 501(2) was enlivened by an offence, but delegate decided not to cancel. Was Minister then allowed to personally exercise discretion under s 501(2) based on a new offence?

MARA: sponsorship requirements

This decision illustrates how the OMARA can use metadata to check whether applications are genuine and the potential level of involvement of practitioners in the provision of "misleading or inaccurate statements"

Does revocation of a visa cancellation bind AAT on revocation of another cancellation?

Federal Court. Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive? Was revocation decision a mandatory relevant consideration in the context of AAT's review of the non-revocation decision?

Material failure to comply with Direction 63

Federal Court. Paragraph 116(1)(g) provided that the Minister may cancel a visa if "a prescribed ground for cancelling a visa applies to the holder". Reg 2.43(1)(p)(ii) prescribed the following ground: "in the case of the holder of a Subclass 050 ... or ... 051 ... visa - that the Minister is satisfied that the holder ... has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country". Does a material failure to comply with Direction 63, issued under s 499, lead to jurisdictional error?

Reg 2.72(10)(f): must position have existed or been occupied?

Federal Court. 457 nomination applicant (i.e. sponsor) was required to satisfy r 2.72(10)(f), which provided: "the position associated with the nominated occupation is genuine". Does that provision require that the position has existed in the past in the sponsoring business or that it has been filled by anyone?

s 501CA(4): intention to depart from Art 12(4) of ICCPR

Federal Court. Art 12(4) of the ICCPR read: "No one shall be arbitrarily deprived of the right to enter his own country". Judicial review applicant argued that Australia was his "own country" by reason of having lived in Australia since the age of 4 and that, in determining whether to revoke under s 501CA(4) the mandatory visa cancellation decision made under s 501(3A), Minister was obliged to put him on notice that he might make a decision which would arbitrarily deprive him of the right to enter (and remain) in Australia.

Does Minister bear onus of proving he has specialist accumulated knowledge?

Federal Court. Is there "authority to the effect that specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making"? Can it be said that a Tribunal, "unlike a court, is expected to build up “expertise” in matters such as country information" and that taking that expertise into account amounts to a want of procedural fairness by reason of pre-judgment? Does Minister bear onus of proving he has specialist accumulated knowledge?

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