Case Law Updates

Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?

Federal Court. Can the test concerning the materiality of an error be expressed in the following way: "absent a Court being satisfied that, but for the breach, there is a reasonable possibility that different outcome could have been reached by a decision maker, a failure to accord natural justice will not be jurisdictional error"?

Federal Court (Full Court). In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not clearly convey the deadline for merits review application. One of the reasons was that the statements as to when the notifications were taken to have been received were located under incorrect headings. Is the fact that, here, the statement was located under the correct heading, sufficient to distinguish DFQ17 and BMY18? Was the notification here unclear in that the "date the notification was received had to be determined by reference to the email, which was 'external' to the notification"? Is the "clearly convey" test an objective or subjective test? Was the notification here misleading in that it stated that a review application may not be accepted after the deadline?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

Once a decision is made to cancel a visa under s 501(2) of the Migration Act 1958 based on certain factual circumstances, can a further decision be made under the same provision, based on the same factual circumstances?

Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?

Federal Court. In MZAPC, the High Court held that an error in the form of non-compliance with the condition that the "ultimate decision" that is made lie within the bounds of reasonableness is material by definition and thus jurisdictional. Does that ruling apply to legal unreasonableness in the decision-making process?

Federal Court (Full Court). Did cl 14.1(2) and (6) of Direction 79, which conflicted with ss 197C and 198 of the Migration Act 1958 (Cth), effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia? Is the damage to Australia's reputation if it refoules a person a mandatory consideration for the purposes of s 501CA(4)?

Federal Court. Did visa subclass 186 "contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant"? Can an employer correct an erroneous nomination withdrawal?