Case Law Updates

Federal Court (Full Court): in a separate  (but not in dissent) judgement, Mortimer J held that the High Court's materiality test in Hossain did not apply to procedural fairness and legal reasonableness

Federal Court. Is it "illogical in the ordinary sense of the word for an administrative decision-maker to state that consideration has been given to evidentiary material in circumstances where no such consideration has been given"? At what point in time must the consideration of whether cancellation is in the national interest occur, pursuant to s 501BA(2)(b)? Can materiality be considered in aggregate?

Federal Court. Is the phrase “extent of impediments if removed” under para 14(1)(e) is given meaning by para 14.5(1) of Direction 79? Is the “extent of impediments” if removed referred to in the chapeau to para 14.5 a mandatory consideration, by reason of para 14(1)(e)? In making a finding about the “extent of impediments”, was it mandatory to consider each of the matters in sub-paragraphs (a) to (c) of paragraph 14.5(1)? If the Tribunal made an error, should the materiality of the error be assessed as a balancing, as opposed to a binary, exercise?

Federal Court. Even though the applicant had not been convicted in court, the Tribunal found that he had been 'convicted'. Did the Tribunal finding involve a misinterpretation of the law? Could the Tribunal have reasonably considered the view of the applicant's minor child to love the applicant to be irrelevant to the best interests of the child?

High Court. Were the conditions in cll 070.612A(1)(a) and (d) of Schedule 2 to the Migration Regulations 1994 (Cth) prima facie punitive? If so, can it be said that there is no legitimate non-punitive purpose justifying the powers, with the result that such powers should be characterised as punitive and therefore as infringing on the exclusively judicial power of the Commonwealth in Ch III of the Constitution?

Federal Circuit and Family Court. Does s 131 of the Migration Act 1958 (Cth) imply an obligation that a revocation decision is to be made within a "reasonable time"? If so, can it be said that "the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense"?

Federal Court. In other to consider "new information", the IAA must, among other things, be "satisfied that there are exceptional circumstances to justify considering the new information" (s 473DD(a)). Can it be said that, if a decision-maker states that "there is already substantial material before me regarding [the applicant's claims] and I have accepted his claims", that would, "by itself, exclude the possibility that there are exceptional circumstances to justify considering 'new information'"? Or can it be said, on the contrary, that the "decision-maker's statement that [it had] accepted the claims of the ... [applicant had] a number of dimensions to it" in the circumstances of this case? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgements in Hossain and SZMTA in 2 respects?

Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

A Federal Court decision on subclass 457 that might also apply to subclass 482: 'it is appropriate that the Tribunal gives consideration to the correct version of [ANZSCO]... it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision'

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?