Case Law Updates

Federal Court. Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?

Federal Court. On 24 June 2020, FCA ordered Home Affairs Minister to decide a protection visa application by 3 July 2020 at noon. On 1 July 2020, Minister's lawyers sent an email saying that Minister was not available to personally make the decision within the timeframe and asking for variation of the order so that any other portfolio Minister could make the decision. On 2 July 2020, FCA accepted that request and ordered Home Affairs Minister to either personally make the decision or ensure it will be made by another portfolio Minister or a delegate by 3 July 2020 at noon. Applicant sought orders directing the institution of contempt proceedings in the event of non-compliance with the latest orders. If those orders are not complied with, could any explanation for non-compliance require an affidavit by the Minister personally and for the Minister to make himself available for cross-examination in contempt proceedings?

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 (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?

Federal Court. For the purpose of cl 14.5 of Direction 79, do the factors to be taken into account include any social or economic support available to the non-citizen in the country to which they would be returned in the event of non-revocation under s 501CA(4) of their visa cancellation?

Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.

Federal Court. Where the Minister is statutorily obliged to provide a statement of reasons for his decision, should he "provide a rational and intelligible explanation as to why he chose to give greater weight to some material over other material where it relates to a significant issue which has been the subject of detailed submissions"? Can it be said that "it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because that manner of reasoning would be permissible"?

High Court: Unbeknown to the Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c). However, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant. IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case". It eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant. IAA's reasons: stated that IAA "had regard to the material referred by the Secretary"; did not refer to additional material. Did the giving of additional material result in: a material "failure of a precondition to the exercise of the jurisdiction of the [IAA] to conduct a review"; a reasonable apprehension of bias on the part of IAA?

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court (Full Court): Applicant did not appear at FCCA hearing, which dismissed a judicial review application under r 13.03C(1)(c) of the Federal Circuit Court Rules. FCCA assessed application for reinstatement of the judicial review application under r 16.05(2)(a), taking into account only one aspect of potentially relevant considerations: whether it was in the interests of the administration of justice to do so. FCCA refused to reinstate. Appellant applied to the Federal Court for leave to appeal the FCCA's decision, arguing that FCCA's failure to take into account other considerations amounted to error.