Case Law Updates

Federal Court. Can it be said that "the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence"? In Makasa, HCA held that power to cancel visa under s 501(2) was spent by AAT's decision to set aside delegate's original decision. Does Makasa apply to s 501CA(4)? Can the same sentence of imprisonment lead to satisfaction of both ss 501(3A)(a) and (b)?

Federal Court. In order for documents or information to be "before the Minister" under s 473DC(1)(a), is it sufficient that they were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession? Does "the fact that on the day before the SHEV interview the delegate accessed [an electronic document] mean that the [document] was before him when the decision was made"? Does the reasoning in Plaintiff M174 concerning s 57 apply to s 473DE? Was Minister required to file notice of contention on materiality?

Federal Court (Full Court). Can it be said that "a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1)"? Can it be said that, "where material such as the audio recording of a delegate interview is not given to the Authority, the question whether the Authority’s task has miscarried in a way which affects its jurisdiction is not decided by a technical focus on the words “possession or control” in [s 473CB(1)(c)], nor on evidence about why the material was not provided"?

High Court. Is the threshold of materiality additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision being vitiated with jurisdictional error? Does the applicant in an application for judicial review "bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture" called for by the materiality test?

Federal Court (Full Court). Can it be said that, "where special circumstances are present by way of a public interest element, the appropriate disposition is that there be no order as to costs"? Is the FCA's discretion to award costs "unfettered except for the fact that it must be exercised judicially"? Is it "extremely rare for the successful party to be ordered to pay the unsuccessful party’s costs"? Are "delay and increased expense brought about by improper conduct in the course of the litigation ... highly relevant factors in the discretion to depart from the usual order as to costs"?

Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?

Federal Court. Is it "likely that the stronger a visa-holder’s ties to Australia, the greater the consequences of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled"? Was "at least one of the purposes served by the power conferred upon the Minister under s 501(2) of the Migration Act ... to protect the Australian public"? If so, then "having regard to the broad nature of the Minister’s discretion" and to the purpose of protecting the Australian public, was it "within the Minister’s authority to come to the view that [the Applicant] represented an unacceptable risk of harm in respect of any reoffending by him"?

Federal Court. Was AAT required to make a finding about the actual likelihood of sponsor and partner visa applicant being half-siblings? Is the combined effect of s 88C and s 88D of the Marriage Act 1961 (Cth) that a marriage that is valid under foreign law shall be recognised in Australia as valid, unless one of the exceptions in ss 88D(2) to (5) is engaged? While a marriage is prima facie valid pursuant to s 88G(1), do s 88D and s 23B(2) prevail? Does s 12 of the Migration Act 1958 (Cth) have the effect that s 88G(1) of the Marriage Act applies to an administrative decision concerning a partner visa application, despite s 353 of the Migration Act?

Federal Court (Full Court). This non-migration decision which might have consequences for migration decisions. Can it be said that a decision under s 11(6) of the CERP Rules not to exercise the "later time" discretion, made in the context of a decision that a person is not entitled to a jobkeeper payment because they did not have an ABN on 12 March 2020, does not fall within s 13(2)(a) of the CERP Act? If so, did s 43 of the AAT Act nevertheless give the Tribunal the power to exercise the "later time" discretion?