Case Law Updates

Federal Court. Should s 347(1)(c) of the Migration Act 1958 (Cth) "be construed in such a way that where a fee reduction request is pending, there is no prescribed fee which must accompany the review application, which, in turn, must be made within the prescribed period"?

Federal Court (Full Court). Can it be said that, "if it is common ground between parties that a particular fact is so, then it is a denial of procedural fairness for an administrator, for example, the Tribunal, to depart from that position without giving each party an opportunity to make submissions on that subject; in other words, ambushing by a decision-maker can amount to jurisdictional error"?

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court. Does a judicial review applicant claiming illogicality in the decision of an administrative decision-maker need to show "extreme illogicality"? Can it be said that "inviting an applicant for a protection visa to speculate on the motivations, reasons or circumstances of a third party in the applicant’s country of nationality may be unlikely to produce probative material"?

Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?

Federal Court. In determining non-revocation request under s 501CA(4), AAT had to consider Direction 79, para 14.5(1) of which provided AAT had to consider the "extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)...". Does para 14.5(1) require decision-makers to "draw a comparison between the welfare systems in Australia and [the non-citizen's home country]"? Is para 14.5(1) to be applied "solely by reference to a generic citizen of the relevant home country, the characteristics of whom are uninfluenced by the particular non-citizen’s personal circumstances"?

We have always thought that the Tribunal can expand the scope of a merits review by considering issues and provisions not considered by the Department. However, according to this landmark Federal Court decision, that is not always the case. We explain why and how practitioners can use this decision in favour of their clients in terms of limiting the scope of the Tribunal's review. By limiting that scope, clients could have 2 chances to have each issue or provision assessed on their merits, one at the Department level and another at the Tribunal level.

Federal Court (Full Court): Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made? Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given? Are decision-makers bound by policy?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court (Full Court). Was Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 wrongly decided?