Case Law Updates

Federal Court: AAT made 1st decision, but found out that it was affected by jurisdictional error and made 2nd decision. Both decisions affirmed delegate's decision. Appellant applied for judicial review of 1st decision, arguing that AAT was functus officio after making 1st decision (i.e. lacked power to make 2nd decision). Presumably, Appellant did so in the expectation that it would be easier to establish jurisdictional error in 1st decision. After all, AAT itself had recognised error in it. Is Bhardwaj authority for a "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever"? Or will the consequence, if any, depend upon the particular statute? Appellant argued the latter applied and relied on s 430(2A), which provided that AAT has no power to vary or revoke a decision, to argue that the AAT lacked power for 2nd decision.

Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at [47], the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?

High Court. Plaintiff missed AAT deadline and thus applied to HCA for judicial review (JR). Could HCA remit matter to FCA or FCCA? Was delay of 6 months in JR application substantial? What is required for the Minister to discharge his/her obligations under s 57(2)? Although s 55(2) provided that Minister was not "required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information", can it be legally unreasonably for Minister to fail to delay?

High Court. Does responsibility for ensuring an absence of bias, whether actual or apprehended, ultimately lie with a court as an institution and not merely with a member of that court whose impartiality might be called into question? Was there a reasonable apprehension of bias in circumstances where one of the members of the Full Court of the Federal Court hearing a migration-related appeal had appeared for the Crown against the appellant in criminal proceedings?

Federal Court: as reported by Migration Law Updates in Dec 2018, the Federal Circuit Court had held that the reference to "2 years" under reg 1.15AA of the Migration Regulations 1994 was linked to the "medical condition", not the "assistance" to be provided by the carer. That decision was appealed.

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Court (Full Court): 'the decision in Hossain did not state a general principle of statutory construction to the effect that there is an implied obligation that all powers conferred on administrative decision-makers are to be exercised on a correct understanding and application of the applicable law such that a material breach of that obligation would be jurisdictional'.

Federal Court: FCCA dismissed application under s 477(2) for extension of time within which to make judicial review application under s 476. As dismissals under s 477(2) are not appealable, Applicant applied to FCA for judicial review of FCCA's decision, arguing that FCCA denied him procedural fairness and thus made a jurisdictional error. In what circumstances can mistranslations or non-translations vitiate a decision? Further, Applicant claimed that his representative "had undertaken to bring proceedings [to the FCCA within the statutory timeframe] challenging the IAA’s decision and yet had failed to do so". If that claim were accepted, did the representative's action constitute fraud on the FCCA?

Federal Court (Full Court). Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right [such as the privilege against self-incrimination] may for that reason be characterised as legally unreasonable"?

Federal Court. Should reasons as to whether to refer an ART decision to the ART's Guidance and Appeals Panel (GAP) usually not be given, for instance because, if a party appeals from that decision to the Court, "there may be some awkwardness in the [ART's] President making detailed findings on matters to be decided by the Court"?