Case Law Updates

Federal Court. Can it be said that "the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence"? In Makasa, HCA held that power to cancel visa under s 501(2) was spent by AAT's decision to set aside delegate's original decision. Does Makasa apply to s 501CA(4)? Can the same sentence of imprisonment lead to satisfaction of both ss 501(3A)(a) and (b)?

Federal Court. The Minister found for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) that the Applicant's offending conduct was so serious that even a low risk of harm was unacceptable. Was it "permissible for the Minister to approach his fact-finding (or satisfaction forming) on the basis that any risk of serious harm to members of the Australian community was unacceptable"?

Federal Court. Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive? Was revocation decision a mandatory relevant consideration in the context of AAT's review of the non-revocation decision?

Federal Court (Full Court): 'Where, as here, material is brought forward in an apparently genuine way that may lead to a reconsideration of an earlier determination as incorrect, it would be wrong to prevent the consideration of factual matters relevant to the making of the preferable decision by reference to' the principle of issue estoppel

Once an RMA becomes aware that a client may have provided false information to the Department, are they obliged to notify the Department? MARA's answer to that question is quite interesting.

One of the complaints against the practitioner came from the Department and was described by the OMARA as follows: "The Former Agent deliberately lodged invalid visa applications to prolong [a client's]  stay [in Australia] and to allow time to meet the visa requirements".

Federal Court. Does the language of 362B of the Migration Act 1958 (Cth) "confine the circumstances in which the [AAT's] power to dismiss [an application for review] may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued"? Does the AAT have power to conduct hearings via video-link?

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. Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information” (i.e. information that is not capable of being believed)? If so, can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?

Federal Court (Full Court): In SZMTA, HCA had held that: error is jurisdictional only if it is material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC had held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. In Weti-Safwan, it was unnecessary to resolve that tension, given the facts of that case. Can the Ibrahim / Nguyen tension be resolved? Were those decisions distinguished here? With respect, we disagree with one aspect of this decision.