Case Law Updates

Federal Court. Did cl 9.2 of Direction 90 assume removal from Australia? Was cl 9.4.1 capable of requiring consideration of removal or indefinite detention? Was it "illogical, irrational or otherwise legally unreasonable for the Tribunal to reduce the weight which it would otherwise have given to the other considerations in cll 9.2 and 9.4.1 because, in the applicant’s current circumstances, the Tribunal found that the only way in which he could be removed to South Sudan was at his own request"?

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. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Federal Court (Full Court): In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. Can that division be resolved? Were those cases distinguished here?

High Court. Is the reference to the act of refusal in s 48A of the Migration Act 1958 (Cth) "simply to an historical fact, that has not been set aside in fact, regardless of its legal effect"? Does s 417 on its face confer a power of substitution only, instead of a power to set aside a decision of the Tribunal? Did the Assistant Minister's act of substitution in s 417(1) have the effect of setting aside the delegate's refusal decision?

Federal Court. Do the terms of s 75(v) of the Constitution prevent the abolition of the natural justice rule under s 501BA(3) of the Migration Act 1958 (Cth)? Are there "significant doubts concerning the ability of the applicant to seek “bail” (an order sought in criminal proceedings) in the present administrative context, particularly in light of such authorities as Al-Kateb v Godwin"?

Federal Court. The AAT carried out a hearing and then invited the Appellant in writing to a second hearing, seeking to "provide [her] with an extended opportunity to address any concerns or issues arising from the evidence before it". The Appellant's RMA would be on maternity leave on the date proposed for the second hearing, so she requested another date. The AAT then cancelled the second hearing and sent a s 359A letter instead, setting out what would be the reason for affirming the delegate's decision and inviting comments. Was the AAT obliged to proceed with the second hearing?

Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?

DHA lodged complaint against RMA. To what extent should RMAs: obtain instructions directly from clients, instead of 3rd parties; undertake checks to verify the authenticity of documents; compare different signatures to confirm documents were signed by the same person? Should RMAs alert DHA or MARA to frauds? Can metadata be used to determine whether RMA misled MARA? If MARA asks for copies of "any" correspondence, does it mean only any "relevant" correspondence? If client asks for an RMA to call back later, does this constitute instructions?

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?