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). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material? 

Federal Court (Full Court). Although the Applicant's case was “novel” in the sense that there was an absence of judicial consideration of PIC 4003(b), is this alone insufficient to justify departure from the rule that costs should follow the event?

Federal Court. If a conviction forms the basis for a visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and the cancellation is then revoked under s 501CA(4), is a decision-maker prevented from using that same conviction as the basis to cancel the visa under s 501(3A)? Did s 501(3A) require an act of the Minister by which a visa was cancelled? Or was the provision rather self-executing?

Federal Court (Full Court). Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm? Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?

Federal Court. Do the words 'counterfeit document' in the definition of a 'bogus document' in s 5(1) of the Migration Act 1958 (Cth) include "a document that is authentic in the sense that its provenance as a document is genuine but contains information that is not true"?

Federal Court (Full Court): 'There is no requirement ... in the Migration Act imposed on the Minister to comply with State (or Commonwealth) privacy laws in the obtaining of information' which can then be used by the Minister when making a decision on whether to cancel a visa under s 501(2)

Federal Court. While the AAT was required to treat offending of the type described under cl 13.1.1(1)(a)-(b) of Direction 79 as “very serious”, did it remain for it to allocate weight in respect of such offending relative to all other relevant considerations under s 501CA(4)(b)(ii) of the Migration Act? Are cl 13.1.1(1)(b) and (d) ultra vires s 499 of the Act to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?

Federal Court. Interpol Red Notice (IRN) was issued in relation to Applicant, stating he had been charged. A person fails the character test by reason of s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". On the basis of the IRN, Minister personally refused to grant visa under s 501(1), stating: "It is therefore not without some substance that [the applicant] would be under suspicion of these charges". Does use of the word “would” in s 501(6)(h) require more than mere suspicion? Could it reasonably be inferred from IRN that Applicant would present a risk to the Australian community?

Federal Court: Self-represented Appellant applied to FCCA, making  "reference to recognisable grounds" of judicial review, but without clearly identifying any jurisdictional errors. FCCA "generally concluded that there had been a repeated failure to 'identify any jurisdictional error'". Was FCCA's conclusion "an attempt to give content to an argument that may have some merit once properly understood"? Notice of appeal was "unhelpful". If FCA holds that FCCA provided inadequate or incomplete reasons, should it remit the matter to FCCA, differently constituted, or should it determine for itself the task of resolving the grounds of review that were before the FCCA?