Case Law Updates

Federal Court. Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational? Can delay be justified on the basis of lack of resources?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court (Full Court): If a student visa applicant intends to pursue PR if the opportunity presents itself, decision-makers are allowed to take that intention into consideration in assessing whether the applicant is a Genuine Temporary Entrant (GTE) under cl 500.212. That intention may be expected to normally lead to the conclusion that the applicant is not a GTE. However, such an intention does not necessarily lead to that conclusion. We explain how practitioners can use this decision to argue that a student visa applicant can be a GTE despite also seeking PR. Arguably, the same principle could apply to visitor visa applicants who also seek PR.

Federal Court (Full Court). Does the word "practicable" as used under s 501CA(3) of the Migration Act 1958 (Cth) ("as soon as practicable") mean feasible? If so, can it be said that "the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice"?

Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?

Federal Court. Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive? Was revocation decision a mandatory relevant consideration in the context of AAT's review of the non-revocation decision?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?

Federal Court. Did the primary judge err in: refusing to provide written reasons following delivery of his ex tempore reasons; communicating that he had no power to publish written reasons? If so to the latter question, does that error invalidate the primary judge’s exercise of judicial power? Does the primary judge’s indication that he would not settle a form of written reasons mean that he failed to give reasons? Can an incomplete transcript of oral reasons be relied upon as reasons of the Court?

Federal Court (Full Court): 'the decision in Hossain did not state a general principle of statutory construction to the effect that there is an implied obligation that all powers conferred on administrative decision-makers are to be exercised on a correct understanding and application of the applicable law such that a material breach of that obligation would be jurisdictional'.