Case Law Updates

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

Federal Court: FCA allowed an appeal by non-citizen Appellant, remitting the matter to AAT for reconsideration of Appellant's protection visa refusal. As Appellant could be unsuccessful at AAT again, he made interlocutory application under s 37AF of FCA Act, for suppression of aspects of the appeal orders, as he feared retaliation in Pakistan. "The issue is whether, to obtain an order, it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all the section requires is for the Court to be satisfied on the balance of probabilities that the order sought is necessary to protect the person’s safety". If Pakistani authorities already knew of Appellant's desertion anyway, should the suppression orders be limited to what those authorities still did not know, namely the content of his criticisms towards them?

High Court. Plaintiff missed AAT deadline and thus applied to HCA for judicial review (JR). Could HCA remit matter to FCA or FCCA? Was delay of 6 months in JR application substantial? What is required for the Minister to discharge his/her obligations under s 57(2)? Although s 55(2) provided that Minister was not "required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information", can it be legally unreasonably for Minister to fail to delay?

High Court (single Justice). Does the common law, once determined, operate both prospectively and retrospectively? In other words, if an administrative decision-maker decides a case based on the law as then understood, but that understanding then changes, does the new understanding apply ab initio?

Federal Court. Was it legally unreasonable for the Minister to find that cancellation of the visa was in the national interest because of the risk to the Australian community, given that the applicant would be in the community in any event due to NZYQ?

Federal Court (Full Court). Does the decision to be made as to whether to revoke a visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) require "each of the factors that are listed in s 8.4(4) [of Direction 99] to be taken into account as part of the final weighing exercise to be undertaken in order to comply with the direction"?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?

Federal Court. Is it implicit in r 2.90(2) that this provision will only be satisfied if the information in question is false or misleading in a material particular? If not, is a threshold of materiality nevertheless implied in r 2.90(3)(a)? Were the matters in the previous iteration of r 1.13A(1)(d)-(h) exhaustive? If not, does the time limitation in the previous iteration of r 1.13A(3) also apply to the other types of adverse information not exemplified in r 1.13A(1)(d)-(h)? Are the matters in r 1.13A(1)(d)-(h) necessarily adverse to the person in question?

High Court. Can it be said that "a decision maker, in whom is reposed a very general statutory power or discretion, can reduce the standard of procedural fairness to "nothingness" simply by deciding that the interests of those affected are irrelevant"?

MARA. Does the lodgement of skills assessment applications or EOIs constitute immigration assistance? Can RMAs be sanctioned for that type of work?