Case Law Updates

Federal Court: the Federal Circuit Court (FCCA) made an interlocutory decision to dismiss the Applicant's judicial review application, despite the fact that the Applicant had informed the FCCA that his lawyer had withdrawn from his case the day before the FCCA hearing. Did the Applicant constructively apply for the FCCA hearing to be adjourned by informing it about the claimed lawyer withdrawal? If so, does the same principle apply to AAT hearings?

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court: the NZ citizen Appellant signed papers requesting to be removed from Australia under s 199(1) of the Migration Act 1958, in which case the airfare was paid for by the DHA. However, the DHA found that the removal rendered her a 'behaviour concern non-citizen': s 5(1). As a result, she was unable to obtain a further subclass 444 visa. If the Appellant did not understand the significance of her removal request, was she really a 'behaviour concern non-citizen'?

Federal Court: the Appellant made a Tribunal application but mistakenly answered in the application form that he held a refugee visa, with the result that the AAT's online system did not ask for payment of the application fee. That fee was only paid after the timeframe for making a valid application. The AAT recognised the mistake was understandable given how its online system was designed, but nevertheless found it had no jurisdiction. Was the review application 'accompanied by the prescribed fee'?

Federal Court: according to a previous decision of the Full Court in SZQDZ, an Independent Merits Review was not a "migration decision" for the purposes of s 477 of the Migration Act 1958. A subsequent decision of the High Court in SZSSJ held that an International Treaties Obligations Assessment was a "migration decision". The question to the FCA was whether SZSSJ overruled SZQDZ to the effect that a Protection Obligation Evaluation was a "migration decision", thus reviewable by the Federal Circuit Court and with a 35-day filing limitation.

Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a  single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?

Federal Court (Full Court): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate

Federal Court (Full Court): If a case officer has received no delegation of authority to cancel a visa under s 109 of the Migration Act 1958 but does so anyway, does the Tribunal have jurisdiction to review that cancellation? If so, is the Tribunal's power limited to setting aside the original decision?

Federal Court: does the question "has the applicant been in any previous relationships" in a partner visa application form refer to relationships in general or only to married or de facto relationships? Can decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? In determining whether information is false, does it matter that, at the time the information was provided, the FCCA had interpreted s 5CB in a way that was subsequently rejected by the FCA?

Federal Court (Full Court): the Minister's visa refusal letter indicating that the applicant could apply to the Tribunal within a timeframe to be calculated by the applicant by reference to the legislative provisions (as opposed to stating the date in absolute terms) was an invalid notification; as a result, a 'late' Tribunal application was not late; this decision means that 'late' Tribunal applications including those from years ago may be reconsidered in certain circumstances