Case Law Updates

Federal Court. In other to consider "new information", the IAA must, among other things, be "satisfied that there are exceptional circumstances to justify considering the new information" (s 473DD(a)). Can it be said that, if a decision-maker states that "there is already substantial material before me regarding [the applicant's claims] and I have accepted his claims", that would, "by itself, exclude the possibility that there are exceptional circumstances to justify considering 'new information'"? Or can it be said, on the contrary, that the "decision-maker's statement that [it had] accepted the claims of the ... [applicant had] a number of dimensions to it" in the circumstances of this case? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgements in Hossain and SZMTA in 2 respects?

Federal Court: Applicant applied to FCCA for judicial review of IAA's decision and for extension of time within which to file that judicial review application. FCCA found that: extension should not be granted "on the ground of inadequate explanation alone"; there was no merit in the judicial review application. As FCCA's decision to refuse to grant time extension was not appealable, Applicant applied to FCA for judicial review that decision and had to show FCCA made a jurisdictional error. FCA held that FCCA erred in holding that judicial review application lacked merit. Was that error jurisdictional? Does the materiality test apply to the determination of whether a court made a jurisdictional error?

Federal Court: In deciding whether to affirm a decision of the Minister to cancel an approval for citizenship under s 25 of the Citizenship Act 2007, was the AAT required to take into account the legal consequences of its decision? If so, was the removal from Australia a legal consequence? Was the AAT required to take into account "non-protection" representations about what would happen if the AAT affirmed the citizenship approval cancellation?

Federal Court. Does the word "may" in s 501CA(4) give decision-makers a residual discretion to refuse to revoke cancellation even if there is "another reason" to revoke? Could Applicant's actions negate the conclusion that revocation is in the best interests of his children or reduce the weight to be placed on those interests? How should the tension between DNQ18 and PQSM regarding the materiality test be resolved? If AAT made error, was error material (and thus jurisdictional)?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

High Court (single Justice). Where an application for merits review is ongoing and yet to be concluded, is valid on its face and made within the prescribed time limit, is it an abuse of process to file a judicial review application with the High Court to review the same decision, in the absence of exceptional circumstances?

Federal Circuit Court: the reference to 2 years under reg 1.15AA 'is not linked to “the assistance” but... to the “medical condition”'

Federal Court: in the context of a review by the Immigration Assessment Authority, were the photos of the scarring previously shown by the Appellant at an interview to a delegate "new information" for the purposes of s 473DC of the Migration Act 1958? Did the fact that the photos were taken many months after the interview make any difference? Further, if the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions?

Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?

Federal Court. Does FCA have jurisdiction to review a delegate's decision to refuse under s 501CA(4) to revoke the mandatory cancellation of a visa made under s 501(3A)? Can the self-represented Applicant's notice of appeal from the Minister's decision be treated, in substance, as: a notice of appeal from the Tribunal's decision; including an application for a time extension under s 477A(2)(a)? How should the FCA approach poorly-cast grounds of judicial review? Is the Tribunal required to conduct hearings in person?