Case Law Updates

Federal Court (Full Court). If the Minister failed to correctly crystallise in his invitation the deadline for making representations to seek the mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth), is that failure immaterial if the Minister considered the representations made in any event? Can it be said that an aggregate sentence of imprisonment was not a single sentence to a term of imprisonment for the purpose of s 501(7)(c), with the result that the cancellation was invalid?

Federal Court. Does the fact that a particular conclusion on a particular issue is based on specialised knowledge "have the result that the rules of procedural fairness do not require that the issue be brought to the attention of an applicant if the issue is a critical or important one which is not obvious on the known material"?

Federal Court: Appellant gave different accounts of his protection claims in his screening interview and later as part of protection visa application. Appellant explained that mental health issues were the reason for those different accounts and gave IAA letters from an accredited mental health social worker who had treated him, for the purpose of corroborating his explanation. IAA disbelieved his explanation and went on to say that those letters did not "overcome the significant concerns and adverse findings the Authority made about the ... appellant’s claims and evidence". Was it "illogical and irrational to reject the evidence [from mental health social worker] because it is inconsistent with a conclusion already reached with regard to the very matter that the evidence was relevant to casting light on"?

Federal Court. Applicant requested that Minister consider exercising power under s 417 of Migration Act. Case officer made a 3 page initial assessment, concluding: "The claims and circumstances presented in this request are not unique or exceptional when assessed against the Minister’s Guidelines. The case is assessed as not meeting the Guidelines for referral to the Minister". Acting Assistant Director's decision read: "I agree with the assessment that circumstances of this case do not meet the Minister’s Guidelines for referral and that, in accordance with the Guidelines, the Department should finalise this request without referral..." Is s 417 conditioned by the requirement of legal reasonableness? If so, was initial assessment or agreement with it legally unreasonable?

Federal Court. Can it be said that the Tribunal's conclusions that the applicant's crimes against other road users, strangers and members of the public going about their daily lives were crimes against vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction No. 90 were not obvious, with the result that procedural fairness required the Tribunal to put those conclusions to the applicant?

Federal Court. Is Direction 99 inconsistent with s 501CA(4) of the Migration Act 1958 (Cth) "because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]"?

Federal Court. Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?

Federal Court (Full Court). The AAT affirmed a refusal of a nomination application under r 5.19 and then affirmed the corresponding subclass 187 visa application refusal. The visa applicant applied for judicial review of the AAT's visa decision. Did he have standing in court to collaterally challenge the AAT's nomination decision through the application for judicial review of the AAT's visa decision? Did cl 187.233(3) refer to a decision in fact made, even if affected by jurisdictional error? Did r 5.19(4) require that the 'position' be restricted to one geographical location?

Federal Court. Can it be said that "s 417 was exclusively intended to deal with decisions made under s 415 and that s 501J would not be engaged"? Can it be said that "a decision of the IAA was not intended to constitute a “decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa” (s 501J(2)) despite the IAA being “established within” the AAT (s 473JA)"?

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"?