Case Law Updates

Federal Court (Full Court). Does the High Court's decision in Plaintiff M1 detract from the proposition that certain matters in Direction 90 were mandatory considerations which had to be considered even if no representations were made about them, lest the decision-maker make a jurisdictional error? Does the assessment of the materiality of an error made under s 501CA(4) of the Migration Act 1958 (Cth) involve a balancing, instead of binary, exercise?

Federal Court. Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"? Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?

Federal Circuit Court. Can the potential for a denial of procedural fairness arise in connection with a parent bringing an application on behalf of a child and the child not attending the Tribunal hearing?

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?

Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?

Federal Court (Full Court). Child applied for child visa. Cl 101.222 of Sch 2 required approval of sponsorship. Sponsoring mother used to live with Mr M, who was not the father of the child, was in prison at TOD, was the father of 2 other children of the mother and gave her financial support. AAT had power under reg 1.20KB(12) to refuse sponsorship if it requested police check for sponsor's de facto partner and such partner did not provide it. Mother denied Mr M was her de facto partner and police check was not provided. Is residence in prison a factor as to whether a couple has a de facto relationship? Should AAT have considered s 5CB? If so, did AAT's speculation that Mr M might want to "visit" his children once released despite its finding that he was in a de facto relationship with the mother indicate it did not consider s 5CB(2)(c) and therefore s 5CB?

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. In order for documents or information to be "before the Minister" under s 473DC(1)(a), is it sufficient that they were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession? Does "the fact that on the day before the SHEV interview the delegate accessed [an electronic document] mean that the [document] was before him when the decision was made"? Does the reasoning in Plaintiff M174 concerning s 57 apply to s 473DE? Was Minister required to file notice of contention on materiality?

Federal Court (Full Court). A FCCA judge said in his reasons that he had relied extensively on the draft reasons made by another judge in preparing his judgment. Was lack of disclosure of draft reasons to Appellant contrary to procedural fairness rules? If so, should costs order below be reversed? Is a continued adulterous relationship determinative of whether definition of "spouse" in s 5F(2)(b) is satisfied? If not, is is at least an exclusionary factor? Is the absence of consent to adultery determinative of whether s 5F is satisfied? If not, is it at least a factor? AAT failed to reveal existence of invalid s 375A certificate containing dob in. Was that failure immaterial, as Appellant was aware of existence and gist of dob in through an FOI and did not make a s 362A request? Does materiality test require judicial review applicant to prove what they would have done had error not been made?

Federal Court. May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer? Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified? In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?