Case Law Updates

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

Federal Court. If a merits review (Tribunal) applicant appoints an authorised recipient, the Tribunal sends the authorised recipient a letter requesting the applicant to give information, comment or response and the authorised recipient does not inform the applicant of the existence of that letter, does it necessarily follow that: the Tribunal may make a decision without taking any further action; the applicant will not be entitled to a hearing?

Federal Court. In the context of s 36(1C)(b) of the Migration Act 1958 (Cth), is the state of an applicant's mental health now and into the future a matter which is only to be counted to the extent that it favours the applicant?

Federal Court. Can it be said that "the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?

Federal Court (Full Court). This decision summarises the legal tests used by the Federal Court to determine whether: to grant an extension of time within which an appeal is to be filed; to allow a party to raise a new ground of alleged error on the part of an administrative decision-maker that was not agitated before a primary judge.

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

Federal Court: In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with Ibrahim. Can that division be resolved? Further, can errors which individually do not satisfy the materiality test do so if combined?

Federal Court. Is an order requiring the disclosure of any record of the Minister’s locations not to be made lightly? Can it be said that, "where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister’s obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual’s right to seek judicial review"?

Federal Court: Applicant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Applicant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Applicant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Applicant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Did AAT make a jurisdictional error?

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.