Case Law Updates

Federal Circuit and Family Court. The Tribunal refused to release information under s 362A of the Migration Act 1958 (Cth), finding that disclosure was not permitted under the Australian Privacy Principle 6. Did the Tribunal make an error, in that the primary purpose of collecting such information was the same for which the delegate and Tribunal would have disclosed it, namely to assess whether the applicant was the sponsor's spouse?

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

High Court. The Plaintiffs argued that the covid-19-related Quarantine (Closing the Border) Directions (WA) issued under the Emergency Management Act 2005 (WA) impermissibly infringed s 92 of the Constitution. The Court held that the exercise of the power given by ss 56 and 67 of the Act to make paras 4 and 5 of the Direction did not raise a constitutional question. Does this mean that the limitations imposed by s 92 of the Constitution are irrelevant for the purpose of judicial review of delegated legislation or administrative decisions made under the Act? One of the judgements arguably answered that question in a novel way.

Federal Court. Are administrative decision-makers "bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented"?

Federal Court. In CRNL, the Full Court held that the Tribunal in that case had ascribed weight to the various considerations, having considered each in isolation, and then expressed a conclusion "without demonstrating that it actually weighed the various considerations against each other", which amounted to a jurisdictional error. Should CRNL be distinguished?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?

Federal Court (Full Court). The Minister found that child pornography offences for which the Appellant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? Was Dunn v Minister for Immigration and Border Protection [2016] FCA 489 wrongly decided?

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. In Direction 79, primary and other considerations were specified as matters that must be taken into account 'where relevant'. For the purposes of determining whether there has been compliance with Direction 79, is relevance a matter to be objectively determined? Should judicial review applicants identify particular aspects of the reasoning of an administrative decision said to be illogical or irrational and then claim that, as they were material, there was legal unreasonableness?

Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?