Case Law Updates

High Court. Is a non-disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) "new information" within the meaning of s 473DC? If so and the IAA treats a certificate as valid and exercises the power conferred by s 473GB(3)(a) to have regard to the information protected by the certificate, can the IAA be taken to have considered that the certificate itself "may be relevant" within the meaning of s 473DC(1)(b)?

Federal Court. On 24 June 2020, FCA ordered Home Affairs Minister to decide a protection visa application by 3 July 2020 at noon. On 1 July 2020, Minister's lawyers sent an email saying that Minister was not available to personally make the decision within the timeframe and asking for variation of the order so that any other portfolio Minister could make the decision. On 2 July 2020, FCA accepted that request and ordered Home Affairs Minister to either personally make the decision or ensure it will be made by another portfolio Minister or a delegate by 3 July 2020 at noon. Applicant sought orders directing the institution of contempt proceedings in the event of non-compliance with the latest orders. If those orders are not complied with, could any explanation for non-compliance require an affidavit by the Minister personally and for the Minister to make himself available for cross-examination in contempt proceedings?

Federal Court. Can it be said that, "just because section 473DD requires that a new claim or evidence must not be ‘considered’ does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed"? Does that question assume that s 473DD also prohibits the consideration of new claims, as opposed to only new evidence?

Federal Court. Was a delay of almost 4 years in deciding a protection visa application very lengthy? Is it reasonable for the Minister to consider s 501A for some period? Even though the Applicant's case was about the delay after the Tribunal remitted the matter to the Department, should this delay be considered in light of a previous delay? Is an absence of resources a justification for delay? Could the Minister further delay making a decision on the basis of a pending criminal trial?

Federal Court. In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". Is a reasonable conjecture applicable in the context of an assessment of the materiality of errors in the form of a failure to consider a claim or evidence in support of a claim? If so, is the standard of reasonable conjecture also undemanding in such a context?

Federal Court: Can cl 14.2(1)(a) of Direction 65 result in less weight being given to cl 14.2(1)(b)? Did the AAT's failure to make a determination about the best interests of some children amount to non-compliance with Direction 65, despite the fact that the Applicant did not "advance their interests as a positive part of his case"? Does the same principle apply to the Applicant's failure to advance a diagnosis of schizophrenia as a positive aspect of his case? Can errors be aggregated for the purpose of determining materiality?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court (Full Court). Does s 476A of the Migration Act 1958 (Cth) prevent "direct review" by the Federal Court of an exercise of power under s 189, including by way of an application for habeas corpus? We summarise the answer to that and 35 other questions.

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?