Case Law Updates

It is often asserted that courts are not allowed to engage in merits review of administrative decisions. However, according to this Federal Court decision, there are circumstances where courts are allowed to do so. Further, can a 'court ... review an administrative decision for unreasonableness based on a finding of fact, short of there being “no evidence” for the finding'?

Federal Court: the respondent pleaded guilty to recklessly causing injuries to his child, which led to the refusal of his visa application; the AAT accepted the respondent's argument that he had only pleaded guilty because he thought that his child would otherwise be taken away from him; the Minister applied for judicial review...

Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?

Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?

Federal Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Can it be said that, although the central consideration is the information in ANZSCO, "other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task"?

Federal Court (Full Court). Is the power in s 501BA(2) of the Migration Act 1958 (Cth) subject to an implied limitation that it be exercised within a reasonable period of time after the original decision?

Federal Court: 'It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else'

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?

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Federal Court. Is there only one DFAT report which must be taken into account in order to comply with Direction No 84, given that the most recent report said that that it replaced the previous report?