Case Law Updates

Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?

Federal Court. Could the Tribunal act under dictation by the decision of a previous Tribunal or give automatic effect to it? Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?

Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?

Federal Court. In the context of s 501CA(4), was the AAT bound by the sentencing remarks of the District Court? Does the decision of the Full Court in WKMZ remain authoritative despite the High Court decision in AJL20?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...

Federal Court. The High Court's majority held in Plaintiff M1/2021 that a decision-maker must "read, identify, understand and evaluate" representations made for the purposes of s 501CA(4) of the Migration Act 1958 (Cth), even though that provision does not render every statement in a representation a mandatory consideration. Should that be contrasted with para 8.1.2(2)(b)(i) of Direction 110, which renders 'information and evidence on the risk of the non-citizen re-offending' a mandatory consideration?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Federal Court: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction 65, which makes the time a non-citizen "has spent contributing positively to the Australian community" a mandatory consideration? If not, may there be "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"? If so, was the present case one of those circumstances? Further, s 43(2B) of the AAT Act requires the AAT to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Does it follow that everything stated in the AAT's reasons is material to its decision?

High Court. Is the power in s 198AHB of the Migration Act 1958 (Cth) conditioned on a requirement to afford the affected person procedural fairness? Does the question of whether to remove a non-citizen is reasonably practicable encompass "an assessment of what will or might be expected to happen to the non-citizen once received into the country to which the non-citizen is removed"? Do ss 198AHB, 76AAA and 198(2B) contravene Ch III of the Constitution in their application to the appellant?