Case Law Updates

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?

High Court. Is it necessary for there to be a "matter" before the Full Court of the Federal Court for it to have jurisdiction in an appeal? If so, can it be said that there was no "matter" before the Full Court "because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals"?

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?

Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

Federal Court. Does the Briginshaw principle favour a conclusion that a person's onus of proving that they were not recklessly indifferent to fraud is low? Is there anything untoward about a client attending the office of a practitioner for the purpose of procuring their services and making an upfront payment? Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court (Full Court). Was the consequence of s 347(1)(c) of the Migration Act 1958 (Cth) and r 4.13(4) of the Migration Regulations 1994 (Cth) that an amount of 50% was payable whether or not the “Request for Fee Reduction” was ultimately successful? If a Tribunal application is not accompanied by the application fee, does the Tribunal have a duty to review the decision?

Federal Court (Full Court). In an "appeal" under s 44(1) of the AAT Act, does a misinterpretation of the law amount to an error only if it is material to the decision in question? If not, is the issue of the materiality of an error nevertheless relevant to whether relief should be refused in the exercise of the Court’s discretion? In exercising the residual discretion under s 34(2) Citizenship Act 2007 (Cth), was the Tribunal limited to considering conduct or matters which had resulted in convictions within the ambit of ss 34(2)(b)(i) to (iv)?