Case Law Updates

Federal Court. Can it be said that, "in order to raise a relevant issue under cl 9.2 there needs to be some evidence of the relevant support in the home country"? For the purpose of cl 9.2, is it "necessary that there be some evidence or material to demonstrate there is some qualitative difference between the circumstances in Australia and those in the applicant’s home country"?

Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?

Federal Court. Is it "likely that the stronger a visa-holder’s ties to Australia, the greater the consequences of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled"? Was "at least one of the purposes served by the power conferred upon the Minister under s 501(2) of the Migration Act ... to protect the Australian public"? If so, then "having regard to the broad nature of the Minister’s discretion" and to the purpose of protecting the Australian public, was it "within the Minister’s authority to come to the view that [the Applicant] represented an unacceptable risk of harm in respect of any reoffending by him"?

Federal Court. If the parties to litigation agree on a principle, is that principle's precedential force diminished? Further, in Vaitaiki, Teoh was interpreted by: Burchett J as requiring decision-makers to take the best interests of children into account as a primary consideration if no notice to the contrary was given; Branson J as requiring decision-makers to treat those interests as a primary consideration. Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration? If the former: is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act; should the FCA adopt Burchett J's or Branson J's interpretation of Teoh?

The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality

Federal Court (FCA). Can it be said that, "in the ordinary course all issues of fact and law should be determined at the one time and that the [FCA] should generally exercise the power in r 30.01 of the Rules cautiously and sparingly"? 

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

Federal Circuit and Family Court. Does s 131 of the Migration Act 1958 (Cth) imply an obligation that a revocation decision is to be made within a "reasonable time"? If so, can it be said that "the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense"?

Federal Court. Might legal unreasonableness (in the sense that the result itself bespeaks error) be found on the basis that there is no plausible justification for the timing of a decision under s 501BA(2) of the Migration Act 1958 (Cth) that is otherwise within power?

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"?