Case Law Updates

Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?

'I am satisfied that the power conferred upon the AAT under s 29(7), (8), (9) and (10) [of the AAT Act] to extend time applies in relation to applications for review of a Part 5 – reviewable decision under s 347(1)(b)(i) of the [Migration Act]'.

Federal Court. Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?

Federal Court. In HZCP, FCAFC had held: "The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself". Can decision-makers question and explore matters surrounding the fundamental facts of the conviction and sentence?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?

Federal Court. Can it be said that, as the visa was cancelled on the basis that the applicant failed the character test arising from the application of the objective standard that he has “a substantial criminal record” in s 501(6)(a), "the subjective standard referred to in paragraph 8.1.1(1)(b)(iii) does not and cannot apply"? Is what was said in an earlier judgment involving the same applicant and Minister "material" before the Tribunal on which it could base its findings?

According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.

Federal Court: The rules that govern an application for injunction at first instance are not the same as those that operate on appeal. This court decision summarises the general principles that govern an application for injunction pending the outcome of an appeal.

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. Is there "authority to the effect that specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making"? Can it be said that a Tribunal, "unlike a court, is expected to build up “expertise” in matters such as country information" and that taking that expertise into account amounts to a want of procedural fairness by reason of pre-judgment? Does Minister bear onus of proving he has specialist accumulated knowledge?