Case Law Updates

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...

Federal Court. DFQ17 held that a visa refusal notification letter must clearly convey the deadline for an application for merits review in order to comply with s 66(2)(d)(ii). Here, the following sentence was found under the heading "Registries of the [AAT]": "As this letter was given to you by hand, you are taken to have received it when it was handed to you". Did the place of that sentence render the notification unclear? The letter also read: "As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)". Did the latter sentence precisely track reg 4.31(1)?

Federal Court (Full Court): The question to the Assistant Minister under s 501CA was whether there was "another reason" why the cancellation of the Respondent's visa should be revoked. The Respondent did not provide evidence, in his revocation request, of the circumstances which led to the offences. The Assistant Minister found, based on very limited information, that the Respondent posed an unacceptable risk to the Australian community. Was the limited information, in and of itself, a probative basis for that finding?

Federal Court (FCA). Is the FCA bound by the parties' agreement on the content of the law or facts? If the FCA declares that the Applicant is not an alien within the meaning of s 51(xix) of the Constitution, can the Applicant be removed from Australia under s 198 or detained under s 189 of the Migration Act 1958 (Cth)? Should the FCA, in the form of a declaration, "lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian"?

Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?

Federal Court (Full Court): This decision could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application. Question to the FCAFC: Is the exercise of the revocation power in s 46A(2C) subject to procedural fairness? Was the Appellant afforded procedural fairness in the exercise of that power? Did the Minister make a personal procedural decision to consider the exercise of his powers under s 46A? Was a sufficient interest of the Appellant affected?

Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?

Federal Court. If the department acts upon a visa application withdrawal request, does that act amount to a 'decision', with the result that the Federal Circuit Court has jurisdiction to review such a decision? Might there be cases where a visa application has not been validly withdrawn? If so, will the appropriate remedy will be mandamus to compel the Minister to consider the application? Will the withdrawal of a visa application be invalid and ineffective if there was no genuine intention to withdraw the application?