Case Law Updates

Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?

Federal Court. Is a willingness to obey or disobey Australian clearly a matter within the conception of the national interest for the purpose of s 501(3)(b) of the Migration Act 1958 (Cth)? Can it be said that "it lies outside the conception of the national interest to take into account conduct which is political communication and organisation because of that feature of the conduct"?

Federal Court. In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". Is reasonable conjecture applicable in the context of an assessment of the materiality of errors in the form of misinterpretation of s 473DD of the Migration Act 1958 (Cth)? If so, is the standard of reasonable conjecture also undemanding in such a context?

Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?

Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?

Federal Court. Is the production of a certified extract from the Registrar of Births Deaths and Marriages for the State of Victoria evidence of the fact of the birth and of each of the facts stated therein? In determining parentage, did it matter that the child support payments that were required to be made by the claimed father were, in the delegate's view, "low"? Was a Medicare card listing both the claimed father and the Applicant evidence of parentage?

Federal Court. Can it be said that "the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3), unless the circumstances in subss (4), (5) or (5A) exist"? If so, is "an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment" precluded? If so, would a person "entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid" have the right to reside in the country?

Section 312A requires RMAs to notify DHA if they are giving someone immigration assistance. MARA found RMA: owned a few businesses and nominated some employees under those businesses; listed himself as an authorised recipient, instead of RMA, in some of the nomination applications. In determining whether a file note provided to the MARA in response to a s 308 notice was created retrospectively just for the purpose of a MARA investigation, can MARA look at the metadata of the file note?

Federal Court. In determining whether a time extension to file a judicial review application should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?

Federal Court. Should the Court withhold the grant of constitutional relief, for instance on the basis that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision, even though NZYQ subsequently overruled Al-Kateb?