Case Law Updates

Federal Court (Full Court). Is the Minister's ‘decision’ not to afford natural justice in exercising power in s 501BA(2) a migration decision listed in any of s 476A(1)(a)-(d), with the result that the Federal Court lacked jurisdiction to review that 'decision'? Was the power in s 501BA conditioned by an obligation to consider whether to afford procedural fairness? If not, can it nevertheless be said that "the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality"?

Federal Court. Is a valid decision under s 501(3A) a precondition to the exercise of AAT's powers under s 501CA(4)? For the purpose of 501CA(4)(b), is AAT "confined to the narrow version of the character test in s 501(3A)(a)"? Does FCA have original jurisdiction to review a decision made under s 501(3A)? If not, does it have accrued or associated jurisdiction to review a decision made under s 501(3A) where it has original jurisdiction to review a decision made under s 501CA(4)? Is AAT allowed to take into account cl 9.4.1 of Direction 90 when considering the weight to be given to the expectations of the Australian community?

Federal Court. Does a judicial review applicant claiming illogicality in the decision of an administrative decision-maker need to show "extreme illogicality"? Can it be said that "inviting an applicant for a protection visa to speculate on the motivations, reasons or circumstances of a third party in the applicant’s country of nationality may be unlikely to produce probative material"?

Federal Court. The Minister found for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) that the Applicant's offending conduct was so serious that even a low risk of harm was unacceptable. Was it "permissible for the Minister to approach his fact-finding (or satisfaction forming) on the basis that any risk of serious harm to members of the Australian community was unacceptable"?

High Court. Where Parliament repeats words which have been judicially interpreted, can it be taken, depending on the circumstances "to have intended the words to bear the meaning already judicially attributed to them"?

Federal Court. Does the Briginshaw principle favour a conclusion that a person's onus of proving that they were not recklessly indifferent to fraud is low? Is there anything untoward about a client attending the office of a practitioner for the purpose of procuring their services and making an upfront payment? Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?

Federal Court (Full Court). In an "appeal" under s 44(1) of the AAT Act, does a misinterpretation of the law amount to an error only if it is material to the decision in question? If not, is the issue of the materiality of an error nevertheless relevant to whether relief should be refused in the exercise of the Court’s discretion? In exercising the residual discretion under s 34(2) Citizenship Act 2007 (Cth), was the Tribunal limited to considering conduct or matters which had resulted in convictions within the ambit of ss 34(2)(b)(i) to (iv)?

Federal Court. If primary and secondary visa applicants have their combined visa applications refused and they make a Tribunal application for the review of the refusals, does that constitute the making of multiple applications, one for each applicant? Is there anything in 426A "or the statutory context in which it appears which requires the Tribunal to have regard to the merits of the substantive application"? If not, does that mean that "in all circumstances no consideration of the merits is warranted"?

Federal Court. In deciding under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant's visa, the Minister found that "Australia has a low tolerance of criminal conduct for people…who have been participating in, and contributing to, the community only for a short period". Should that finding "be understood as a concrete factual finding reflective of some impossible synthesis or amalgamation of the views held collectively by the Australian community"?

Federal Court (Full Court). Do ss 100 or 111 of the Migration Act 1958 (Cth) "make the question of whether the appellant’s incorrect answers were deliberate or inadvertent legally irrelevant in the context of" the discretion to cancel a visa under s 109? Are the circumstances prescribed under r 2.41 of the Migration Regulations 1994 (Cth) for the purpose of s 109(1)(c) non-exhaustive? If so, what are the types of permissible considerations?