Case Law Updates

Federal Court. Can the power in s 501BA(2) of the Migration Act 1958 (Cth) only be exercised within a reasonable time after the original decision? If so, is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?

Federal Court. There is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials. But will a court be more willing to make that finding in favour of an unrepresented party?

Federal Court (Full Court): An error is only jurisdictional if material and only material if, had it not been made, the decision could have been different (HCA: Hossain). Materiality is a question of fact in respect of which judicial review applicants bear the onus of proof (HCA: SZMTA). It was incumbent on the appellant to demonstrate what would have occurred had the error not been made (FCAFC: Ibrahim). Differently constituted, the FCAFC disagreed with that aspect of Ibrahim, distinguished SZMTA and Hossain and reconciled the latter 2 cases with WZARH.

Federal Court. In determining whether an unarticulated claim nevertheless clearly arose from the materials before an administrative decision-maker, is it relevant that the non-citizen was professionally represented before that decision-maker throughout the process?

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?

Supreme Court of New South Wales (Court of Appeal). Does a court's failure to properly apply the relevant standard of proof amount to jurisdictional error?

Federal Court (Full Court). Under s 5 of the Migration Act, an "excluded fast track review applicant" includes a fast track applicant who "has made a claim for protection in a country other than Australia that was refused by that country". If a protection visa application is refused and the delegate forms the view that the applicant is an excluded fast track review applicant, that refusal is not subject to merits review. Can it be said that "the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia"?

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

Federal Court. Did the ability lawfully to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the cancellation of a visa "expire with the expiry of what would otherwise have been the duration of the term of the visa"? In other words, can it be said that the ability to revoke the cancellation did not exist, as revocation would merely restore an already expired ('stillborn') visa?

Federal Court (Full Court). Does s 476(1) of the Migration Act 1958 (Cth) confer on the Federal Circuit and Family Court (FCFCOA) jurisdiction to hear and determine all matters arising out of common facts, such as a claim for damages for false imprisonment, in which a writ of mandamus or an injunction is sought against an officer of the Commonwealth in relation to a migration decision?