Fact finding allowed on appeal?
High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.
Logical to reason that appellant was a risk to community, even though he would...
Federal Court (Full Court). Was it legally unreasonable, irrational or illogical for the Minister to conclude that the risk that the appellant posed to the community and community expectations weighed in favour of cancellation of his visa when the appellant would remain in the community anyway on a BVR because of the effect of NZYQ?
Does specialised knowledge obviate need for procedural fairness?
Federal Court. Does the fact that a particular conclusion on a particular issue is based on specialised knowledge "have the result that the rules of procedural fairness do not require that the issue be brought to the attention of an applicant if the issue is a critical or important one which is not obvious on the known material"?
RMA sanctioned for lack of VEVO consent
'... Agent had accessed the personal and immigration information of a person who was not her client on three separate occasions without their knowledge or permission, using [VEVO]'
Can decisions “become” unreasonable? Part 3
Federal Court: If an administrative decision-maker takes into account facts existing at the time of decision and those facts change after a decision is made, can it be said that the decision was legally unreasonable?
Did r 5.19 require position to be geographically fixed?
Federal Court (Full Court). The AAT affirmed a refusal of a nomination application under r 5.19 and then affirmed the corresponding subclass 187 visa application refusal. The visa applicant applied for judicial review of the AAT's visa decision. Did he have standing in court to collaterally challenge the AAT's nomination decision through the application for judicial review of the AAT's visa decision? Did cl 187.233(3) refer to a decision in fact made, even if affected by jurisdictional error? Did r 5.19(4) require that the 'position' be restricted to one geographical location?
BAL19 called into question again
Federal Court. Does a Class BF Transitional (Permanent) Visa satisfy the definition of a “protection visa” in s 48A(2) of the Migration Act 1958 (Cth)? Was BAL19, which held that s 501(1) did not apply to protection visas, wrongly decided?
Modifying behaviour: ss 5J(3) and 5L
Federal Court (Full Court). Do the expressions in ss 5L(c)(ii) and 5J(3)(a) of the Migration Act 1958 (Cth) necessarily encompass the same "characteristic"? Assuming that IAA accepted that the Appellant's interest for music and dance was "a characteristic that [was] fundamental to [his] identity", was it open to IAA to find that Appellant could avoid a real chance of persecution by carrying out his activities underground and with caution? Could the IAA have "decided that the appellant’s expression of his interest in music and dance “underground” would not conflict with a characteristic which was fundamental to his identity ... without having made a finding concerning the existence and nature of that characteristic"?
Tension between SAAP and Hossain / SZMTA / MZAPC?
Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?
Evidence required to prove materiality?
Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?