Case Law Updates

Federal Court (Full Court). FCA had said: "The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation". Did FCA engage in merits review by saying that mandatory considerations under s 501CA(4) which AAT had ignored "were not sufficient to outweigh those matters" and that AAT's error was thus immaterial? Does the materiality test threshold vary from statute to statute? Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness? Does the materiality threshold vary according to the type of decision within the Migration Act? Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'? Was it necessary, in order to establish the materiality of AAT's error, for Appellant to demonstrate by evidence what he would have done had error not been made?

Federal Court. Does s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) involve a discretion? If so, is that discretion closely analogous discretion to the discretion under s 501(1)?

Federal Court. Are the procedural fairness duties affected by whether a Tribunal applicant is represented? Is the duty to consider claims not clearly articulated, but which arise tolerably clearly from the material before the Tribunal, affected by whether a Tribunal applicant is represented? Was reliance on ss 36(2)(b) or (c) tolerably clear? Are those 2 provisions a 'time of decision' requirement?

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

High Court. Does the fact that s 494AB(3) prohibits bringing certain matters in FCCA mean HCA cannot remit them to FCCA? Is the HCA and FCCA's jurisdiction for granting habeas corpus implied under s 75(v) of the Constitution? Plaintiff also sought a declaration that it is in the public interest for Minister to consider exercising power under s 197AB. Because of s 476(2)(d), a decision not to consider the exercise of the Minister's power under s 197AB is not reviewable by the FCCA. As the declaration sought does not involve such a decision, does FCCA have jurisdiction to make that declaration?

Federal Court: May ss 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth) overlap? Further, IAA refused to consider new info, saying: "The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection". Did IAA, in effect, say that "in no circumstances could evidence" relating to the siblings "have probative value when assessing the applicant’s claims for protection", thus amounting to jurisdictional error?

Federal Court. In BCR16, FCAFC explained there was a difference between “claiming to fear harm if required to return to a place and non-refoulement obligations”. Is that distinction illusory in some circumstances? Does the fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so prevent the application of s 198(2B) to him or her? Should those who advise the Minister, and his Department, "be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised"?

Agent had been suspended for 3 months and until certain conditions were met. As MARA received no communication from the Agent, the suspension continued to be in effect. MARA then commenced an investigation and found that: Agent had "disengaged from the migration advice profession"; his "prolonged failure to engage with [MARA] and endeavour to comply with the conditions imposed on his suspension appears to demonstrate a blatant disregard for [MARA], the migration advice regulatory scheme, and his former clients".

Federal Court (Full Court). Was the Tribunal permitted for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) to consider the combined influence of cll 9.4.1(2)(a) and (b) of Direction 90 as constituent parts of the “other ties” consideration in cl 9.4.1(2) and apply the abating effect under cl 9.4.1(2)(a)(i) to that consolidated whole?

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?