Case Law Updates

Federal Court: In SZMTA, the High Court had held that materiality "is a matter of fact on which the appellant bears the onus of proof". However, can it be said that "materiality has to be formally placed in issue before that onus arises"?

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. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?

Federal Court. The Migration Act 1958 (Cth) pointed to the deadline for seeking merits review falling on a Saturday, although the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) (AIA) was to extend it until the following Monday. By being silent on the effect of s 36(2) of the AIA, did the letter notifying of a non-revocation decision fail to state the deadline, with the result that the Tribunal application lodged years later was not late?

Federal Court (Full Court): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate

Federal Court. Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"? Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?

Federal Court. When a single judge of the FCA disagrees with previous decisions of single judges of the FCA, is the question whether those previous decisions should be followed out of comity, rather than whether they are "plainly wrong"? Is a translation provided to the IAA, but not to a delegate, of a document that was before the delegate "new information" for the purpose of s 473DC of the Migration Act 1958 (Cth)?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?

Federal Court (Full Court). Section s 501CA(4)(a) provides that the Minister may revoke the mandatory cancellation of a visa if "the person makes representations in accordance with the invitation". Reg 2.52(2)(b) provides that representations must be "made ... within 28 days after the person is given the notice" of cancellation. Here, the notice said that representations must be "received within 28 days". Do the terms "in accordance with the invitation" allow the notice to determine what the legislation means? Do the terms "makes" and "made" mean "receives" and "received"?

Federal Court (FCA). Is the FCA bound by the parties' agreement on the content of the law or facts? If the FCA declares that the Applicant is not an alien within the meaning of s 51(xix) of the Constitution, can the Applicant be removed from Australia under s 198 or detained under s 189 of the Migration Act 1958 (Cth)? Should the FCA, in the form of a declaration, "lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian"?