Case Law Updates

High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.

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. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?

Federal Court. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

Federal Court. Would a Tribunal application to review a decision made under s 501CA(4) of the Migration Act 1958 (Cth) be invalid and of no effect if it failed to "contain a statement of the reasons for the application", as required by s 29(1)(c) of the AAT Act, even if such a statement were subsequently provided to the Tribunal, but after the deadline for a merits review application?

Federal Court. A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law? Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?

Federal Court: Tribunal can correct errors in its written statement of reasons in the General Division, but only if they are 'obvious', immaterial errors

High Court. Were the conditions in cll 070.612A(1)(a) and (d) of Schedule 2 to the Migration Regulations 1994 (Cth) prima facie punitive? If so, can it be said that there is no legitimate non-punitive purpose justifying the powers, with the result that such powers should be characterised as punitive and therefore as infringing on the exclusively judicial power of the Commonwealth in Ch III of the Constitution?

Federal Circuit Court. Although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country, does the GTE criterion in cl 500.212(a) also encompass any positive effects of such obligations? Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

Federal Court: In the context of s 501CA(4), Applicant made detailed claims to AAT of how he would be subject to harm if returned to Somalia. AAT acknowledged those claims but did not expressly make findings on them. Does the FCAFC's decision in Omar stand for the proposition that "the use of expressions such as ‘I note’ and ‘I have considered’ may itself give rise to jurisdictional error"? Did AAT: fail to consider risk of harm outside the scope of non-refoulement obligations; and thus make error considered by FCAFC in Omar? Can it be said that such error was immaterial as AAT accepted Applicant may face torture and even death on return anyway? In other words, is the materiality test a binary exercise?