Case Law Updates

Federal Court. For the purposes of the materiality test, FCAFC (White, Perry and Charlesworth JJ) held in Ibrahim that the judicial review applicant had to prove what would have happened had the decision-maker not made the error in question. FCAFC (Rares, Griffiths and Burley JJ) in Karan came to the same conclusion. FCAFC (Jagot, Robertson and Farrell JJ) in Nguyen disagreed with Ibrahim. FCAFC (Katzmann, Mortimer and Bromwich JJ) recently adopted one of Ibrahim and Nguyen. However, as the FCA decision extracted in this article indicates, the division shown by the Ibrahim / Nguyen tension is still present among justices of the FCA.

Federal Court. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?

High Court (single Justice). Is a protection visa applicant required to pick the correct "label" to describe his or her claims?

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "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 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

Federal Court: There is no common law duty on administrative decision-makers to provide reasons for their decisions. Thus, in the absence of a statutory duty, those decision-makers are not required to provide reasons at all. However, if an administrative decision-maker chooses to provide reasons in circumstances where they are not obliged to do so, can a court on judicial review draw an inference from the fact that the decision record is silent about a particular consideration that such a consideration was not taken into account?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

Federal Circuit Court. Is a statutory declaration from a psychologist that is in "essentially conclusory terms and was relatively unsupported by evidence of her observations" sufficient to satisfy the requirements for a statutory declaration from a psychologist in IMMI 12/116? Was it "open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116"? Is the validity of an opinion expressed by persons specified in IMMI 12/116 a jurisdictional fact, in the sense of a fact that a court can and should determine for itself on judicial review?

High Court. Did the delegate fail to comply with ss 56 and 62 of the Migration Act 1958 (Cth), and thus made a jurisdictional error, by saying that "any documents that are not translated by accredited translators in Australia, or by official offshore translators, will not be included as part of [the assessment of whether to grant a visa]"?

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?