Case Law Updates

Federal Court. In MZAPC, the High Court held that an error in the form of non-compliance with the condition that the "ultimate decision" that is made lie within the bounds of reasonableness is material by definition and thus jurisdictional. Does that ruling apply to legal unreasonableness in the decision-making process?

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a  single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?

Federal Court. Should the words in brackets be read into cl 6.3(5) of Direction 79: "Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life [or their adult life], or from a very young age"?

Federal Court. Can it be said that "the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”" pursuant to s 5H(2)(a) of the Migration Act 1958 (Cth)? How to interpret Articles 22(1) and 25(3)(c)-(d) of the Rome Statute of the International Criminal Court, entered into force 1 July 2002?

Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?

Federal Court: Although Appellant had not complied with conditions imposed on previous student visas, Department granted him further student visas. AAT affirmed a decision to refuse the Appellant's last student visa application, due to the non-compliance described above. Appellant argued on judicial review that: "any breach of [visa conditions] had been 'condoned' by operation of law when subsequent visa applications were granted without any complaint being raised as to earlier non-compliance'; as a result, AAT was not allowed to take into account earlier non-compliance.

Federal Court (Full Court). Does s 476A of the Migration Act 1958 (Cth) prevent "direct review" by the Federal Court of an exercise of power under s 189, including by way of an application for habeas corpus? We summarise the answer to that and 35 other questions.

Federal Court: AAT made 1st decision, but found out that it was affected by jurisdictional error and made 2nd decision. Both decisions affirmed delegate's decision. Appellant applied for judicial review of 1st decision, arguing that AAT was functus officio after making 1st decision (i.e. lacked power to make 2nd decision). Presumably, Appellant did so in the expectation that it would be easier to establish jurisdictional error in 1st decision. After all, AAT itself had recognised error in it. Is Bhardwaj authority for a "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever"? Or will the consequence, if any, depend upon the particular statute? Appellant argued the latter applied and relied on s 430(2A), which provided that AAT has no power to vary or revoke a decision, to argue that the AAT lacked power for 2nd decision.

Federal Court (Full Court). Did the Tribunal's finding involve a misinterpretation of the law, in that it found the appellant to have been 'convicted', in the absence of a court conviction? Was it sufficient for the purpose of para 8.4(4)(f) of Direction 99 for the AAT to consider the view expressed by a child, without considering the document where that view was expressed?