Case Law Updates

Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?

Federal Court: In decision under s 501CA(4), AAT wrote: "The [Minister] has ... submitted that the duty to remove a person from Australia only arises if it is reasonably practical [sic] to do so. The Tribunal agrees with this submission. The period of detention is fixed until it is reasonably practicable to remove a person". Did AAT misinterpret ss 197C & 198? In regards to non-refoulement obligations, AAT referred only the “existence of the non-refoulement obligation” and to the fact that the Applicant was a person “to whom Australia has non-refoulement obligations”. Did AAT give "active consideration to the likely significant harms" that refoulement would entail, as mandated by Direction 65? Did AAT consider the prospect of indefinite detention?

Federal Court. Does s 423A of the Migration Act 1958 (Cth) codify the circumstances in which the Tribunal may draw an unfavourable inference?

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court. Can it be said that, "if an applicant fails to appear at a scheduled hearing, the Tribunal has three options: (i) to proceed to make a decision on the review (s 426A(1A)(a)); (ii) to dismiss the application “without any further consideration of the application or information before the Tribunal” (s 426A(1A)(b)); or (iii) to adjourn the review and reschedule the hearing (ss 426A(2) and 427(1)(b))"? If so, must its decision nevertheless have an evident and intelligible justification?

Federal Court (Full Court). Do the same principles of statutory interpretation apply to the interpretation of a Ministerial direction? Should cl 14.4(1) of Direction No 79 be interpreted literally? Was it for the Tribunal to come to its own view as to the materiality of its own errors?

OMARA's decision summary: "the Agent was complicit in fraudulent conduct in the creation of companies that the Agent knew, or should have reasonably known, were not lawfully operating in Australia but were registered for the purposes of obtaining immigration outcomes for his clients for which they were not genuinely entitled".

Federal Court (Full Court): The question to the Assistant Minister under s 501CA was whether there was "another reason" why the cancellation of the Respondent's visa should be revoked. The Respondent did not provide evidence, in his revocation request, of the circumstances which led to the offences. The Assistant Minister found, based on very limited information, that the Respondent posed an unacceptable risk to the Australian community. Was the limited information, in and of itself, a probative basis for that finding?

Federal Court: Tribunal can correct errors in its written statement of reasons in the General Division, but only if they are 'obvious', immaterial errors