Case Law Updates

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: Delegate refused to grant a primary applicant child and his/her secondary applicant parents a protection visa. AAT then found there was no real risk that the child would suffer significant harm, on the following basis: "I find that the effects of not having his birth registered and not being able to access citizenship documentation will thus be significantly offset by having two parents to care for him and the financial support of his father". Did AAT make a jurisdictional error by finding that the risk of harm to the child could be offset by the parents' financial support?

Federal Court (Full Court). Can it be said that, "for the purposes of the discretion under s 10(2)(b)(ii) [of the ADJR Act], the availability of a full merits review on a de novo basis can constitute “adequate provision” for review and entitle the Court to refuse relief in its discretion"? If so, is the position "perhaps even stronger here where the appellant potentially had available to him two tiers of review in the AAT"?

Federal Court (Full Court): In SZMTA, HCA had held that: error is jurisdictional only if it is 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 had 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. In Weti-Safwan, it was unnecessary to resolve that tension, given the facts of that case. Can the Ibrahim / Nguyen tension be resolved? Were those decisions distinguished here? With respect, we disagree with one aspect of this decision.

Federal Court. The appellant answered a question in a student visa application form, indicating he had never had previous visa refusals. In reality, he had had student visa refusals. Was it unnecessary for the Tribunal to explain in any detail the basis upon which it considered the impugned answer was relevant to cl 500.212 (GTE criterion)? Did PIC 4020(5)(b) require determination of whether cl 500.212 was satisfied? May an applicant's provision of such false or misleading information be a 'relevant matter' within the meaning of cl 500.212(c)?

Federal Court. Does s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) involve a discretion? If so, is that discretion closely analogous discretion to the discretion under s 501(1)?

Federal Court. Was the Tribunal allowed to 'net off’ or offset against one another the various factors that it took into account when considering under cl 14.5 of Direction 79 the extent of impediments that the Applicant may face if removed from Australia?

Federal Court. Are decision-makers required to identify the precise respects in which information is false or misleading? Can the question of whether a person provided "false or misleading information in a material particular" within the meaning of PIC 4020 be answered by a court? In order for the "false or misleading in a material particular" limb of PIC 4020 to be enlivened against a visa applicant, must the applicant have knowledge that the information is false or misleading? If so, are decision-makers required to identify knowledge as a requirement and make an express finding about the matter? Does the materiality threshold involve a question of whether the chances of a different outcome in the absence of error would have been "slim"?

Federal Court. Minister sent an invalid invitation under s 501CA(3) to make representations seeking revocation of visa cancellation. Minister then sent an identical invalid invitation weeks later. Applicant made representations within the legislative timeframe calculated by reference to the date of the second, but not the first, invitation. Minister treated the representation as valid and made a decision under s 501CA(4), but challenged representation's validity before the Tribunal. Was the Tribunal allowed to determine whether it had jurisdiction by questioning whether the Minister's decision was valid?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?