Case Law Updates

Federal Court. Was the MOC's opinion that the costs would be likely to result in a significant cost to the Australian community in areas of health care and community services incorrect "because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018"?

Federal Court. Minister sent an invalid invitation under s 501CA(3) to make representations seeking revocation of visa cancellation. Minister then sent an identical invalid invitation weeks later. Applicant made representations within the legislative timeframe calculated by reference to the date of the second, but not the first, invitation. Minister treated the representation as valid and made a decision under s 501CA(4), but challenged representation's validity before the Tribunal. Was the Tribunal allowed to determine whether it had jurisdiction by questioning whether the Minister's decision was valid?

Federal Court: appellant failed to attend Tribunal hearing; Tribunal dismissed the application for non-appearance; appellant provided a medical certificate that was not 'properly completed'; Tribunal found appellant did not have sufficient explanation for non-appearance and did not reinstate proceedings

Federal Court. In deciding whether to affirm cancellation made under s 109, AAT said Department would conduct an ITOA before removing Appellant from Australia. Combined effect of ss 198 and 197C was that, if AAT affirmed Department's decision, Appellant should be removed as soon as reasonably practicable despite Australia's non-refoulement obligations. Did the removal duty have to be performed regardless of whether any ITOA process would occur?

Federal Court (Full Court). Can it be said that "the discretion resides in the Tribunal under s 438(3)(b) [of the Migration Act 1958 (Cth)] insofar as there is a valid certificate, and that there is no obligation under s 424AA, s 424A or s 425 to disclose to the appellant the information nor any matter contained in the document “unless the discretion is affirmatively exercised”"?

Federal Court. Was a delay of almost 4 years in deciding a protection visa application very lengthy? Is it reasonable for the Minister to consider s 501A for some period? Even though the Applicant's case was about the delay after the Tribunal remitted the matter to the Department, should this delay be considered in light of a previous delay? Is an absence of resources a justification for delay? Could the Minister further delay making a decision on the basis of a pending criminal trial?

Can RMAs draft statutory declarations for clients or provide them with templates? If so, to what extent? Should an RMA "doubt the information provided by ... client/s, the witnesses or the Declarants or any documents that [the RMA] has witnessed”? Does the responsibility to provide correct information lie with the person making a declaration? If a client keeps a copy of the service agreement, but the RMA does not, is the RMA entitled to payments? If "the way [an RMA] has managed [his/her] practice has proven successful over the years", does that "absolve" the RMA of his/her recording keeping obligations? Can it be said that "assisting ... clients with completing their forms and preparing their statutory declaration along with the signing of the Form 956" are sufficient to comply with cl 2.8(a), according to which RMAs must confirm client's instructions in writing?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?

Federal Court (Full Court). Can it be said that "s 91X of the [Migration Act 1958 (Cth)] gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief"? We summarise the answer to this and several other questions.