Case Law Updates

Federal Court: a previous FCA judgement had held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). Does the same principle apply to visa cancellation revocation notices issued pursuant to s 501CA(3)?

Federal Court. Is the so-called implied undertaking (also known as “Harman undertaking”) to the effect that "a party who seeks discovery of documents obtains it on condition that the party will make use of those documents only for the purpose of that action, and for no other purpose"? If so, does the answer suggest that the undertaking only applies to documents obtained under compulsion, as opposed to documents voluntarily provided?

Federal Court. DFQ17 held that a visa refusal notification letter must clearly convey the deadline for an application for merits review in order to comply with s 66(2)(d)(ii). Here, the following sentence was found under the heading "Registries of the [AAT]": "As this letter was given to you by hand, you are taken to have received it when it was handed to you". Did the place of that sentence render the notification unclear? The letter also read: "As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)". Did the latter sentence precisely track reg 4.31(1)?

Federal Court. In light of the High Court decision in MZAPC, is it necessary for a court to consider materiality as a separate issue after finding that an administrative decision was legally unreasonable?

Federal Court. In circumstances where the applicant gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell, does the onus of proof shift to the Minister to establish the fact that the applicant was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the applicant's release, was s 501(3A)(b) necessarily not met?

Federal Court. Where the Minister is statutorily obliged to provide a statement of reasons for his decision, should he "provide a rational and intelligible explanation as to why he chose to give greater weight to some material over other material where it relates to a significant issue which has been the subject of detailed submissions"? Can it be said that "it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because that manner of reasoning would be permissible"?

Federal Court. Delegate refused to revoke mandatory cancellation of judicial review Respondent's visa under s 501CA(4). AAT remitted the matter to the Minister on the basis that it was "bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained". Was AAT subject to an investigation duty? Was AAT bound to remit the matter to the Minister?

Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?