Case Law Updates

Federal Court (Full Court). FCA held that a notification under s 501CA(3) of a decision is not a decision. That judgement was appealed to FCAFC. Does a privative clause decision include the making of a determination of an administrative character? If so, does s 501CA(3) require the Minister to make an administrative determination as to the way in which he or she considers the written notice required by the provision is to be given to the person concerned, thus making a notification under that provision a privative clause decision and enlivening FCCA's jurisdiction? If so, does FCCA have jurisdiction to determine whether a determination was made by a person duly authorised by the Minister? Does a notification purportedly sent under s 501CA(3) by a person to whom the power to notify had not been delegated under s 496(1), have legal effect?

Federal Court. Did the Tribunal commit a jurisdictional error in finding under cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) that the First Appellant was not a genuine applicant for entry and stay as a student, in the absence of any finding that she intended to apply for a permanent visa, did not intend to complete the course of study in question or that she was a “fake student”?

Federal Court. Can it be said that the Tribunal's conclusions that the applicant's crimes against other road users, strangers and members of the public going about their daily lives were crimes against vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction No. 90 were not obvious, with the result that procedural fairness required the Tribunal to put those conclusions to the applicant?

Federal Court. Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?

Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?

Federal Court. Were the financial capacity criterion and enrolment criterion not entirely independent, with the result that the Tribunal's finding on the latter did not render its error on the former immaterial?

Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.

Federal Court (Full Court). If a non-citizen makes representations under s 501CA(4)(a) within the period specified by the legislation and the Minister (or Tribunal) makes a decision under s 501CA(4)(b) on the merits of the case on the assumption that the representation is validly made, but the period fixed in the invitation issued under s 501CA(3)(b) is incorrect, is that decision nevertheless valid? In other words, will an error in the date fixed in the invitation justify the grant of remedies by a court only if the error is material?

Federal Court. In exercising the power in s 501A(3)(a) of the Migration Act 1958 (Cth), was the possibility that if the permanent visa in question was not cancelled the applicant could obtain citizenship an irrelevant consideration or illogical, irrational or legally unreasonable reasoning?

Federal Court: when determining under s 501CA(4) of the Migration Act 1958 whether to revoke the mandatory cancellation of a visa, should a decision-maker also take into consideration the non-citizen's submissions regarding what the expectations of the Australian community are or should the decision-maker only take into consideration their own views of what constitutes those expectations?