Case Law Updates

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?

Federal Court (Full Court). Section s 43(2B) of the AAT Act provided that written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Is a failure to give reasons as required an error of law?

Federal Court (Full Court). Does the High Court's decision in Plaintiff M1 detract from the proposition that certain matters in Direction 90 were mandatory considerations which had to be considered even if no representations were made about them, lest the decision-maker make a jurisdictional error? Does the assessment of the materiality of an error made under s 501CA(4) of the Migration Act 1958 (Cth) involve a balancing, instead of binary, exercise?

Federal Court. If a claim is not clearly articulated but arises tolerably clearly or sufficiently from the materials, is the Tribunal required to consider it?

Federal Court. Was the adverse conclusion that the Applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction 90 one not obviously open on the known material, with the result that the Tribunal not putting the Applicant on notice of it amounted to a denial of procedural fairness?

Federal Court. In assessing, for the purpose of a time extension application within which to bring judicial review proceedings, whether a proposed ground of review has any merit, is the issue to be determined at a relatively impressionistic level?

Federal Court. Is the assessment of whether a ground of judicial review has sufficient merit to justify the grant of leave for it to be agitated for the first time on appeal to be conducted on a "reasonably impressionistic" basis?

Federal Court (Full Court). Does the Tribunal’s place in an administrative decision-making continuum necessarily mean that "the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum"?

High Court. Was the Respondent's finding of guilt as a child made without recording of a conviction, with the result that his offending as a minor was an irrelevant consideration and that the Minister's consideration of it was erroneous, even if the Respondent referred to his offending as a child in his submissions to the Minister?

Federal Court. In circumstances where the applicant gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell, does the onus of proof shift to the Minister to establish the fact that the applicant was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the applicant's release, was s 501(3A)(b) necessarily not met?