Case Law Updates

Federal Court (Full Court): We recently summarised a FCAFC decision which held that: the Minister had made a personal procedural decision to consider the exercise of his powers under s 46A; the exercise of the revocation power in s 46A(2C) was subject to procedural fairness. Now, the FCAFC delivered a further judgement, with remedies that gave effect to that decision. Both decisions could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application.

Federal Court: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)? Can a failure to treat like cases in a like way constitute jurisdictional error? If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept the tender?

Federal Court: Where the Minister is not obliged to, and does not, provide reasons for a decision: does a submission to the Minister provided by the Department necessarily constitute the Minister's reasons if the decision was recorded on the front page of the submission?; how can a court determine whether the Minister's decision was legally unreasonable?; can it be inferred that the Minister considered the Department's submission? Generally speaking, what are the matters an administrative decision-maker must take into account in exercising a discretion?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Federal Court: "The High Court has warned against attaching particular significance to the [International Covenant on Civil and Political Rights - ICCPR] and its attendant jurisprudence in interpreting sections of the [Migration Act 1958 (Cth)] which incorporate ICCPR obligations". However, can decisions of international bodies interpreting Art 7 of the ICCPR "in the context of withheld or inadequate healthcare ... be of assistance in determining when an obligation might arise in the context of deportation"?

Federal Court: AAT mistakenly added 1 week to the 84-day deadline for making a decision (s 500(6L)) and neither Applicant nor Minister noted it at directions hearing. Minister's advocate noted the mistake only after the actual deadline and before the mistaken deadline and notified Tribunal, which nevertheless proceeded to provide reasons for affirming the original decision. Did the AAT make a decision? Did the Federal Court have jurisdiction for a judicial review application? If so, what remedies were available?

Federal Court: Can cl 14.2(1)(a) of Direction 65 result in less weight being given to cl 14.2(1)(b)? Did the AAT's failure to make a determination about the best interests of some children amount to non-compliance with Direction 65, despite the fact that the Applicant did not "advance their interests as a positive part of his case"? Does the same principle apply to the Applicant's failure to advance a diagnosis of schizophrenia as a positive aspect of his case? Can errors be aggregated for the purpose of determining materiality?

Federal Court: Can an administrative decision-maker "find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life"? Can it "be said that questions raised and conclusions reached about the stability of the relationship" are irrelevant to an administrative decision-maker's assessment of the factors in reg 1.15A(3)(d)?

Federal Court (Full Court): In DFQ17, the FCAFC held that a notification letter sent by DHA did not clearly convey the deadline for an AAT application and, as a result, a "late" merits review application was actually not late. Then, the FCA decision in Ali distinguished DFQ17 by holding that a notification letter sent via email and setting out a deadline of 21 calendar days did clearly convey the deadline. Now, the FCAFC has answered whether "the fact that a notification is sent by email is ... in itself sufficient to distinguish a case from DFQ17".

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?