Case Law Updates

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

Federal Court: In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with Ibrahim. Can that division be resolved? Further, can errors which individually do not satisfy the materiality test do so if combined?

High Court. Practitioner used written submissions deriving from a previous client as a template for submissions sent to the IAA concerning 2 other clients. As a ground of judicial review, must fraud affect a particular duty, function, or power of the IAA? If so, were they affected for either of those 2 other clients? Was the IAA's failure to exercise the power in s 473DC to get new information, namely new submissions, legally unreasonable?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?

Federal Court. In the context of s 36(1C)(b) of the Migration Act 1958 (Cth), is the state of an applicant's mental health now and into the future a matter which is only to be counted to the extent that it favours the applicant?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?

Federal Court. Is there only one DFAT report which must be taken into account in order to comply with Direction No 84, given that the most recent report said that that it replaced the previous report?

Federal Court: Appellant made an unsuccessful judicial review application to FCCA, which delivered oral reasons for judgement, but those reasons were not interpreted to Appellant. Appellant appealed to FCA just before the statutory deadline, but FCCA's reasons were only published more than a month after the appeal was filed. Minister argued to the FCA that "there was no denial of procedural fairness ... because the appellant in fact filed a notice of appeal on time, and did not seek to amend it once he did receive a copy of the [FCCA's] reasons". The content of the contemporaneous reasons were not known to the FCA nor the Minister or the Appellant. Did FCCA deny Appellant procedural fairness? If so, what remedy should the Appellant be given?

Federal Court. In exercising his power under s 501BA, are the Tribunal’s reasons for decision always a mandatory consideration? Was it legally unreasonable for the Minister to find that the applicant's risk of recidivism was dependent on whether he would have access to mental health treatment, which in turn depended on whether he would be eligible for NDIS treatment, and yet ignore that a decision under s 501BA would render the applicant a non-permanent resident and thus ineligible for NDIS treatment?

Federal Court. Direction 79 provides: "crimes of a violent nature against women or children are viewed very seriously". AAT set aside delegate's decision not to revoke under s 501CA(4) the mandatory cancellation of the Applicant's visa under s 501(3A). AAT said that Applicant had "committed offences of violence which relate to vulnerable people" and found that those offences were "serious", not "very serious". Did that finding in itself constitute a jurisdictional error? Does para 13.1.1(1)(b) state that "crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed"? Does para 13.1.2 require AAT to "reach a decision on the nature of the harm that might be involved"? Did AAT engage with para 13.2(4)?