Case Law Updates

Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?

Federal Court: s 36(3) of Migration Act 1958 provides that Australia is taken not to have protection obligations if non-citizen "has not taken" all possible steps to enter & reside in any other country apart from Australia and the country where they fear persecution. AAT found that Indian Appellant had well-founded fear of persecution in India, but not Nepal. Appellant argued to AAT that, at the TOD of, he could only enter Nepal through India. Was AAT required to consider whether Appellant could or would prospectively: voluntarily return to Nepal; be removed from Australia to India? Or was AAT required to focus instead only on whether, by the TOD, Appellant had taken all possible steps to enter & reside in Nepal?

Federal Court. Did the Federal Circuit and Family Court (FCC) deny the appellant Minister procedural fairness? Is the question of whether the FCC denied the Minister procedural fairness one of law? If so, is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?

Federal Court (Full Court): As mentioned in previous articles, at least 4 single-judge Federal Court decisions are authorities for the proposition that the materiality test expounded by the High Court in Hossain should not be treated as binary in nature. Now, the Full Court has said something which "might" be interpreted as treating the materiality test as binary. If that is the case, we respectfully disagree and explain why.

Federal Court (Full Court). Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"? Was s 376(1)(b) of the Migration Act 1958 (Cth) such that "the relevant quality of confidence attaches to the information at the point the information is given"?

Q1 to the OMARA: assuming that it was not the Agent who forged the sponsor's signature and that he was not aware of the forgery, did he nevertheless facilitate the forgery by lack of diligence? Q2: assuming that the Agent's copying of the letterhead from the sponsor's website into nomination documents without the sponsor's knowledge did not involve dishonesty, was that nevertheless a misleading act? Q3: did the metadata on the Agent's file notes indicate to OMARA that those notes were not contemporaneous?

Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?

Federal Court. Is the question in para 8.3(4)(a)(i) of Direction 99 whether the person was successful in respect of issues such as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia? Did para 8.5(2)(a)-(f) exhaustively identify the relevant categories of conduct?

Federal Court (Full Court): was an email that exceeded the maximum size accepted by the addressee nevertheless "capable of being retrieved by the addressee at an electronic address designated by the addressee"?

Federal Court: Where the Minister is not obliged to, and does not, provide reasons for a decision: does a submission to the Minister provided by the Department necessarily constitute the Minister's reasons if the decision was recorded on the front page of the submission?; how can a court determine whether the Minister's decision was legally unreasonable?; can it be inferred that the Minister considered the Department's submission? Generally speaking, what are the matters an administrative decision-maker must take into account in exercising a discretion?