Case Law Updates

Federal Court. In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415" of the Migration Act 1958 (Cth), with the result that the Minister had the power under s 417 to substitute for the decision of the Tribunal?

Federal Court. If the Minister finds under s 501CA(4) that "the broader Australian community’s general expectations about non-citizens, as articulated in [Direction 90], apply in this case", but then, "without any explanation and before anything else ... immediately states that he “attributed this consideration significant weight against revocation of the cancellation of [the Applicant's] visa”", will he fail to intellectually engaged with the question of the weight to ascribe to those expectations?

Federal Court: Para 6(3) of Direction 79 stated: "Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time". That sentence was then followed by this qualification: "However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age". AAT's reasons did not refer to that qualification. Did AAT implicitly reject that qualification? Is the materiality test a binary or balancing exercise? Were the "nature and extent of the consequences [of removal] obvious ... from the material before the Tribunal"?

Federal Court (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?

High Court. Is the Minister required under ss 54(1), (2)(c), 55(1) or 56(1) to consider relevant information given or gotten at an interview? Is "compliance by the Secretary of the Department with the consequent procedural duty to give to the Authority specified categories of "review material" [under 473CB] affected by errors in the translation of words spoken during the protection interview"? Can IAA make a jurisdictional error if it relies on misinterpretation and does not invite applicant to an interview or does not exercise its powers to get and consider new information which might address the misinterpretation?

Federal Court. Can it be said that "it will almost invariably be the case that there will be differences between the accounts given by a visa applicant" and that the Immigration Assessment Authority's jurisdiction to "review" a decision "is not properly discharged by merely identifying differences between some of the accounts given and labelling those differences “inconsistencies”"?

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?

Federal Court. In the context of the review of a decision under s 501CA(4) of the Migration Act 1958 (Cth), the Minister is obliged to lodge with the Tribunal every document in the Minister’s possession that is ‘relevant to the making of the decision’: s 500(6F)(c). Does it necessarily follow that the Tribunal is under an obligation to at least consider the documents lodged with it under s 500(6F)(c) as relevant documents? In Plaintiff M1, the High Court warned of the danger of labels such as "active intellectual consideration" inviting impermissible merits review. Does the use of such labels necessarily invite merits review?

Federal Court. Appellant spent most of his years in Australia without working, due to injury. Did cl 14.1(2)(a)(ii) of Direction 65 require AAT to "consider either the appellant’s will to be productive"? Accepting that cl 14(1) requires AAT "to take into account matters of relevance to whether to revoke the mandatory cancellation of a visa, apart from those specified in cl 14(1)", can it be said that "the reasons for a lack of contribution to the Australian community are such a relevant consideration"? Could AAT give lesser weight to the relationship between Appellant and his daughter "because at the time of the Tribunal’s decision she was soon to turn 18"?

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?