Case Law Updates

Federal Court. s 501CA(3)(a) required Minister to notify non-citizen that visa had been mandatorily cancelled under s 501(3A). s 501CA(4)(b) required Minister to invite non-citizen to make representations seeking revocation of visa cancellation within period prescribed by regulations. Reg 2.52 set out a period of 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a). When do 28 days start to run? Minister gave notice & made invitation on 22 Jun 2017, but Applicant only made representations on 4 Sep 2017. On 11 April 2019, DHA emailed the Applicant a personal circumstances form, giving him 28 days to respond. Did that email constitute a fresh invitation such as to recommence the running of time and re-enliven the Minister’s power? Can Minister consider late representations

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, has the FCAFC echoed the writer's views expressed in several articles that the materiality test is not binary but rather that the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant? Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?

Federal Court (Full Court). Do the words “a danger” in s 36(1C) of the Migration Act 1958 (Cth) refer to more than trivial harm? Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community? Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?

Federal Court: May ss 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth) overlap? Further, IAA refused to consider new info, saying: "The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection". Did IAA, in effect, say that "in no circumstances could evidence" relating to the siblings "have probative value when assessing the applicant’s claims for protection", thus amounting to jurisdictional error?

Federal Court: appellant failed to attend Tribunal hearing; Tribunal dismissed the application for non-appearance; appellant provided a medical certificate that was not 'properly completed'; Tribunal found appellant did not have sufficient explanation for non-appearance and did not reinstate proceedings

Federal Court. Are there situations where a lack of resources may explain the period taken to make a decision under s 501BA(2) of the Migration Act 1958 (Cth), but where the decision still has not been made within a reasonable time?

Federal Court. Does the "Citizenship Act require the relevant decision maker to consider and decide on each aspect of s 21(2) once s 21(1) is enlivened, even if a prohibition on approval applies", such as s 24(6)(g)?

High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?

High Court: Did availability of alternative avenue of judicial review to FCA preclude application to HCA? Applications to FCCA under s 476(1) must be made within 35 days of migration decision (s 477(1)), unless extension is granted (s 477(2)). Does s 477(1) limit the scope of jurisdiction conferred on FCCA by s 476(1)? Or does it merely limit the exercise of that jurisdiction? Did HCA adopt FCFAC's decision in MZABP? In assessing time extension application, was FCCA's "inference about a self-represented litigant's state of understanding of court procedure ... available to be drawn based solely upon the fact that [Plaintiff] has previously brought proceedings in that court"?

Federal Court. Can it be said that "engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight"?