Case Law Updates

Federal Court. Can it be said that "information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual" and therefore that country information may include "personal information" for the purposes of the Migration Act 1958 (Cth)?

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Federal Court. Is there only one DFAT report which must be taken into account in order to comply with Direction No 84, given that the most recent report said that that it replaced the previous report?

Federal Court (Full Court): Due to translation issues, the Appellant did not understand a question that was asked of him at an interview with a delegate. The delegate refused that application. The Appellant then put the IAA on notice of the translation issues. Was the IAA "required ... to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3)"? Did the interpreter's errors bring this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?

Federal Court (Full Court): 'the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation [to] matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4)' of the Migration Act 1958 (non-revocation of visa cancellation)

Federal Court. In order for the Minister to personally made a decision under s 501CA(4), must he be "briefed with an accurate and sufficient summary of the matters raised by the representations or ... undertake the consideration of the representations personally"? Can it be inferred from the form of the reasons (i.e. circling 1 of 3 options) that they were the means by which the Minister was briefed, with the result that "the matters that are known to the Minister are only those matters expressed in the reasons"?

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 Minister found that cancellation under s 501BA(2) was in the national interest, because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons convicted of the offences involved to remain in Australia. Was that finding irrational, as the Applicant was NZYQ affected and would thus remain in Australia anyway?

Federal Court. 457 nomination applicant (i.e. sponsor) was required to satisfy r 2.72(10)(f), which provided: "the position associated with the nominated occupation is genuine". Does that provision require that the position has existed in the past in the sponsoring business or that it has been filled by anyone?

Federal Court: It is often said that jurisdictional errors made by an original decision-maker are always irrelevant to a merits review application, given that the Tribunal will make a decision de novo. However, that is not always the case, as this decision illustrates.