Case Law Updates

Federal Court. AAT set refusal aside, finding Applicant met s 36(2)(aa). On remittal, in considering exercise of discretion under s 501(1), Minister "accepted" AAT had found s 36(2)(aa) was satisfied and "noted" Applicant's submission to Minister relating non-refoulement obligations. Can it be said that Minister's acceptance that the AAT had found that s 36(2)(aa) was met should not be viewed as acceptance by him of substratum of AAT's finding? Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to discharge his discretion? For the purposes of discretion under s 501(1), is Minister entitled to disagree with or adopt AAT's findings?

Federal Court: Cl 8(4) of Direction 65 provided: "Primary considerations should generally be given greater weight than the other considerations". AAT quoted that clause but eventually noted "the requirement that primary considerations should be given greater weight than the other considerations". Did AAT misinterpret cl 8(4)? Did AAT misinterpret cl 14.2(1)(a) by saying it was required to place less weight on how long the Applicant had resided in Australia "because of the limited positive contribution to the Australian community"? If so, was that error material? Is materiality a binary or balancing test? Despite Applicant's clearly articulated claim regarding the impact non-revocation would have on his family, pursuant to cl 14.2(1)(b), AAT made no finding in that regard. Should FCA infer from AAT's recitation of 14.2(1)(b) that it considered that claim? Did AAT misinterpret DHA's warning letter to Applicant?

Federal Court: when determining under s 501CA(4) of the Migration Act 1958 whether to revoke the mandatory cancellation of a visa, should a decision-maker also take into consideration the non-citizen's submissions regarding what the expectations of the Australian community are or should the decision-maker only take into consideration their own views of what constitutes those expectations?

Federal Court. Does the principle according to which a failure on the part of an administrative decision-maker to make an obvious inquiry can be a ground of judicial review apply both s 5(2)(g) of the ADJR Act and an analogous jurisdictional error? What are the circumstances in which a court can receive evidence on judicial review? In public law, is the jurisdictional error ground of "fraud" confined to that of the decision-maker, a party, or a party’s representative?

Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

Federal Court. Can it be said that a protection "claim based on the need to support one’s family is more likely to “clearly emerge” from the material given the fundamental relevance of the matter in human terms"? Does the "review material" before the Immigration Assessment Authority include the delegate's decision?

Federal Court (Full Court). Where the Tribunal affirms a decision or remits it to the original repository of the power, is it exercising a power under the Migration Act 1958 (Cth), with the result that its decision is exempt from the validation provisions of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act)? If so, is that decision nevertheless exempt from the validation provisions of the Amending Act, as the Tribunal “did something else” within the meaning of item 2 of Sch 1 of the Amending Act?

Federal Court (Full Court). Although referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion, did the Tribunal ask itself the correct question when it searched for "another reason" under the Direction, as the Direction itself referred to that question as involving a discretion? If not, can it nevertheless be said that "the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision"?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?