Case Law Updates

Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?

Federal Court (Full Court): Can admin decision-makers make findings of fact in the absence of evidence? Which of the following approaches is correct? A finding made with no evidence will only amount to jurisdictional error where: a) "the relevant finding is a precondition to the exercise of jurisdiction"; b) "the finding is a critical step in the ultimate conclusion of the decision-maker". Can admin decision-makers, in certain circumstances, "draw on their accumulated knowledge or experience in respect of particular countries"?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Federal Court. In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata or Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"? Was the Tribunal entitled to consider an ITOA and its conclusion for the purpose of s 501CA(4)? Was Tribunal required to be satisfied of Art 1C of the Convention?

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?

Federal Court: cl 485.223 requires application to be accompanied by evidence that skills assessment has been applied for. In Khan, Full Court had decided that the clause "established an objective temporal test" which does not "import notions of fairness". Here, as a result of a practitioner's mistake, the assessment was only applied for after the visa application had been lodged. Should this case be decided differently on the basis that, here: the practitioner made that mistake; and ImmiAccount "should have rejected the application" given the answer "no" to the question on the visa application form on whether the applicant had applied for an assessment?

Federal Court. Is the materiality test question whether the result, in the absence of error, was inevitable? In assessing materiality, would a court be usurping the statutory task entrusted to the decision-maker if it formed its own view as to what the result should have been in the absence of error?

'There is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing'

Federal Court. If the Tribunal suggests that it will consider only a subset of the issues considered by the delegate but in reality also considers other issues considered by the delegate, is it under an obligation under s 360(1) to "invite the applicant to give evidence and present arguments relating to [those other] issues"?

Federal Court. Does the rule in Browne and Dunn, being one of fairness, apply equally to a trial judge as to counsel?