Case Law Updates

Federal Court: Self-represented Appellant applied to FCCA, making  "reference to recognisable grounds" of judicial review, but without clearly identifying any jurisdictional errors. FCCA "generally concluded that there had been a repeated failure to 'identify any jurisdictional error'". Was FCCA's conclusion "an attempt to give content to an argument that may have some merit once properly understood"? Notice of appeal was "unhelpful". If FCA holds that FCCA provided inadequate or incomplete reasons, should it remit the matter to FCCA, differently constituted, or should it determine for itself the task of resolving the grounds of review that were before the FCCA?

Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?

OMARA found it: received 2 complaints against an RMA; sent the RMA notices under ss 308 and 309 of the Migration Act 1958 (Cth); and never received a response from the RMA after some months. Can RMAs be sanctioned on the basis of lack of response? What happens to the substance of the complaint?

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?

Federal Court. If the Minister personally makes a decision under s 501CA(4): is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations; must he give "reasons as to why the expectations of the Australian community should count against revocation"? Must s 501CA(4) decisions  be made within a reasonable period of time? May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

Federal Court (Full Court). If a decision-maker disbelieves a person on one matter, can it be said that that disbelief might be carried over to affect the decision-maker's disbelief in other matters? If so and if it is established that belief of a person's credibility on one matter was erroneously based, can it be said, in the context of assessing the materiality of an error, that that might convince the decision-maker of the need to revisit its conclusions on other matters?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?