Case Law Updates

Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?

Federal Court: A delegate of the Minister refused a protection visa application and provided written reasons, pursuant to s 66 of the Migration Act 1958 (Cth). Those reasons contained the date of the decision, but not the time. The matter was automatically referred to the Immigration Assessing Authority (IAA) under s 463CA, which required the IAA to review the decision as soon as reasonably practicable after the delegate "made" the decision. Did the fact that the letter was silent as to the time of the delegate's decision mean that there was no decision to refer to the IAA?

Federal Court (Full Court): "Notwithstanding provisions in Pt 7AA of the Migration Act 1958 (Cth)", was the Immigration Assessment Authority "obliged by natural justice ... requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing"?

High Court: "This Court accepted in [SZMTA] that the giving of a notification under s 438(2)(a) ... triggers an obligation of procedural fairness on the part of the [Tribunal] to disclose the fact of notification to an applicant for review under Pt 7. [Does] the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority ... to disclose the fact of notification to a referred applicant in a review under Pt 7AA"?

Federal Court (Full Court): Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made? Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given? Are decision-makers bound by policy?

Federal Court (Full Court): The Appellant answered "no" to the following question in a visa application form for subclass 300 (prospective marriage): "If you are in a de facto spouse, fiancé(e) or interdependent relationship, are you related to your partner by blood, marriage or adoption?" That same question was asked in the application form for visa subclasses 820/801 (partner) and the same answer was given. As the Appellant was a first cousin of the sponsor, did she fail to satisfy s 101 by providing incorrect information?

Federal Court: The writer has voiced concerns in several articles about the fact that, sometimes, merits review is inadvertently labelled by the Minister as materiality test considerations. With respect, were those concerns were echoed by the FCA? Further, can it be said that, as the Tribunal "is not bound by technicalities, legal forms or rules of evidence”, it cannot "decline to accept the tender by or on behalf of an applicant at a hearing of a document containing information capable of corroborating the basis of that applicant’s visa claim"?

Federal Court: This decision is extremely important to subclass 482 (TSS) visa applicants. Although it concerned a subclass 457 visa application, it involved the interpretation of a critical provision that is identical to cl 482.212(3). According to this decision, ANZSCO was not the only guide that could be used to determine the "skills, qualifications and employment background" that were necessary for the applicant to perform the tasks of the nominated occupation. We explain how practitioners can use this decision to their clients' advantage.

Federal Court (Full Court): In SZMTA, HCA held that: error was jurisdictional only if it was 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 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. Can that division be resolved? Were those cases distinguished here?

OMARA's decision summary: "the Agent was complicit in fraudulent conduct in the creation of companies that the Agent knew, or should have reasonably known, were not lawfully operating in Australia but were registered for the purposes of obtaining immigration outcomes for his clients for which they were not genuinely entitled".