Case Law Updates

Federal Court: "The Tribunal provided an audio-recording of part of the hearing, but indicated that the remainder of the hearing had not been recorded due to technical difficulties". Is there a "general obligation to make, and give to the applicant, an audio-recording of an administrative hearing"?

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court (Full Court). Commonwealth made representations to Appellant that he was an Australian citizen by granting him a passport and enrolling him to vote. He reasonably relied on those representations to his detriment in that he never applied for citizenship and became liable to visa cancellation under s 501(3A). If Commonwealth was his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) and breached its duty to apply for citizenship for him, did the breach, coupled with the representations, render the Minister equitably estopped from treating him as a non-citizen?

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?

Federal Court (Full Court): 'the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation [to] matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4)' of the Migration Act 1958 (non-revocation of visa cancellation)

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?

High Court. Does s 351(1) of the Migration Act 1958 (Cth) involve 2 sequential statutory decisions (the first being procedural and the second being substantive) neither of which the Minister is obliged to make? Were the 2016 Ministerial Instructions an approximation of the 'public interest' (being the test in s 351(1)), with the result that the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers, thereby exceeding the statutory limit on executive power imposed by s 351(3)?

Federal Court (Full Court). Is the power to allow an appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below?

Federal Court. Was AAT required to make a finding about the actual likelihood of sponsor and partner visa applicant being half-siblings? Is the combined effect of s 88C and s 88D of the Marriage Act 1961 (Cth) that a marriage that is valid under foreign law shall be recognised in Australia as valid, unless one of the exceptions in ss 88D(2) to (5) is engaged? While a marriage is prima facie valid pursuant to s 88G(1), do s 88D and s 23B(2) prevail? Does s 12 of the Migration Act 1958 (Cth) have the effect that s 88G(1) of the Marriage Act applies to an administrative decision concerning a partner visa application, despite s 353 of the Migration Act?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?