‘Decision’ to cancel under s 501(3) instead of s 501(2)? Appeal.
Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?
Can FCCA receive “new information”?
Federal Court: Did the FCCA inadvertently deny the Appellant procedural fairness by, among other things, saying to him that "you can't give [the FCCA] anything new"? The answered turned on what "anything new" meant in the circumstances.
Was Omar wrongly decided?
Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.
Does s 501(6)(b) capture conduct committed wholly outside Australia?
Federal Court (Full Court): A person fails the character test under s 501(6)(b) if they have been a member of, or have been associated with, a group, organisation or person that has been involved in criminal conduct. Does the Acts Interpretation Act 1901 set up a presumption that a piece of legislation that is silent about its territorial operation, as is the case with s 501(6)(b), only applies within Australia? If so, does the object of the Migration Act 1958 rebut that presumption?
Making a decision the same as providing reasons?
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?
Did the 84-day deadline apply?
Federal Court (Full Court): AAT dismissed application under s 42A of AAT Act. Applicant applied for reinstatement of that application. AAT refused to reinstate on the assumption that, if it reinstated, the original decision would be affirmed by operation of s 500(6L) of the Migration Act, thus rendering reinstatement useless. Was that assumption wrong? If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance?
Sex photos needed to prove homosexuality?
Federal Court: "There are a number of troubling aspects of the Tribunal’s reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following... The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual".
MARA: can 186/187 visa applicants bear nomination costs?
OMARA: [All expenses incurred for the [subclass 187] nomination application are the responsibility of the sponsor and cannot be transferred to the visa applicant"... "I am satisfied that the Agent’s text message conversation with [the complainant] was related to the facilitation of payments intended to be provided to the employer by the visa applicant for a nominated position. It is an offence under sections 245AR and 245AS of the Act to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event".
Can decision makers draw on their own experience?
Federal Court (Full Court): Can admin decision-makers make findings of fact in the absence of evidence? Which of the following approaches is correct? A finding made with no evidence will only amount to jurisdictional error where: a) "the relevant finding is a precondition to the exercise of jurisdiction"; b) "the finding is a critical step in the ultimate conclusion of the decision-maker". Can admin decision-makers, in certain circumstances, "draw on their accumulated knowledge or experience in respect of particular countries"?
FCCA “failed to afford the appellant procedural fairness”
Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?