Case Law Updates

Federal Court: DHA refused visa under s 501(1). AAT remitted matter for reconsideration with a direction that the discretion under s 501(1) be exercised in the applicant’s favour. Minister personally set aside AAT's decision under s 501A(2) in the national interest. Minister's exercise of discretion relied in part on erroneous finding that Applicant entered AU on a false identity. In Lu, the risk of harm posed by an affected person to AU community based on the correct criminal record was a mandatory relevant consideration in the exercise of the discretion under s 501A(2). In Gbojueh, risk of harm was mandatory also in the context of determining the national interest. Should Lu be interpreted as only applying to erroneous findings in relation to a non-citizen's criminal record and thus be distinguished? Did Minister's satisfaction about the national interest involve a jurisdictional fact?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.

Federal Court: Before appeal proceedings at FCA finalised, Callinan AC prepared a Report on the AAT, which included the following passage: "[the MRD Legal Services Section of the AAT has] prepared from time to time “templates” of determinations. I am told that at one stage, this section either volunteered to, or otherwise sought, and did in fact, “check” decisions by Members, on occasions requesting, if not almost insisting, upon changes beyond proofing changes". Appellants sought leave to issue a subpoena to MRD Legal Services Section to produce all documents exchanged with Member which could constitute legal advice. In support of leave application, Appellants' solicitor claimed Member's Linkedin profile revealed Member was legally qualified but "did not have a background in legal practice", thus supporting inference Member received legal advice. If Member received legal advice, did that vitiate AAT's decision?

Federal Court: Cl 8(4) of Direction 65 provided: "Primary considerations should generally be given greater weight than the other considerations". AAT quoted that clause but eventually noted "the requirement that primary considerations should be given greater weight than the other considerations". Did AAT misinterpret cl 8(4)? Did AAT misinterpret cl 14.2(1)(a) by saying it was required to place less weight on how long the Applicant had resided in Australia "because of the limited positive contribution to the Australian community"? If so, was that error material? Is materiality a binary or balancing test? Despite Applicant's clearly articulated claim regarding the impact non-revocation would have on his family, pursuant to cl 14.2(1)(b), AAT made no finding in that regard. Should FCA infer from AAT's recitation of 14.2(1)(b) that it considered that claim? Did AAT misinterpret DHA's warning letter to Applicant?

Federal Court: Certiorari lies for errors of law on the face of the record (ELFR), whether or not those errors are jurisdictional (Kirk). However, under s 474, certiorari does not lie for ELFR for privative clause decisions (PVC). As a result, certiorari lies for PVC only if the error is jurisdictional, despite the fact that reasons of admin decision-makers comprise the record. FCCA orders comprise the record (DMI16), although its reasons do not (Craig). Appeals to FCA of FCCA decisions to dismiss applications for time extension are precluded by s 476A(3). Thus, FCA can only set aside those decisions under s 39B of Judiciary Act 1903 and if FCCA made a jurisdictional error or if there are ELFR in FCCA decisions. Does the materiality test apply to ELFR in FCCA decisions? If FCCA's reasons state the orders to be made, does record incorporate those reasons? Do the "alleged jurisdictional errors of the Tribunal become jurisdictional errors of the" FCCA?

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

Federal Court: If an administrative decision-maker takes into account facts existing at the time of decision and those facts change after a decision is made, can it be said that the decision was legally unreasonable?

Federal Court (Full Court): Is para 12.3(1) of Direction No 65 concerned with the effects of a crime on a victim and their family? Or is it concerned with the additional impact of a decision to grant a visa on the victim and their family? If the latter applies: could AAT nonetheless deal with Appellant's criminal conduct as "an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1)"; if AAT treated para 12.3(1) as concerned with the effects of the crime (as opposed to the effect of visa grant) on the victim and their family, does it necessarily follow that AAT made a jurisdictional error?

Federal Court: Appellant made an unsuccessful judicial review application to FCCA, which delivered oral reasons for judgement, but those reasons were not interpreted to Appellant. Appellant appealed to FCA just before the statutory deadline, but FCCA's reasons were only published more than a month after the appeal was filed. Minister argued to the FCA that "there was no denial of procedural fairness ... because the appellant in fact filed a notice of appeal on time, and did not seek to amend it once he did receive a copy of the [FCCA's] reasons". The content of the contemporaneous reasons were not known to the FCA nor the Minister or the Appellant. Did FCCA deny Appellant procedural fairness? If so, what remedy should the Appellant be given?