Case Law Updates

Federal Court. Was cl 14.2(1)(b) of Direction 79 concerned with the effect of non-revocation, as opposed to revocation, of the cancellation of the non-citizen’s visa? Do cll 14.2 or cl 14.4(1) permit consideration only of the negative impacts on family members of removal of the non-citizen from Australia?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court. Can it be said that, "just because section 473DD requires that a new claim or evidence must not be ‘considered’ does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed"? Does that question assume that s 473DD also prohibits the consideration of new claims, as opposed to only new evidence?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

Federal Court. If the Tribunal suggests that it will consider only a subset of the issues considered by the delegate but in reality also considers other issues considered by the delegate, is it under an obligation under s 360(1) to "invite the applicant to give evidence and present arguments relating to [those other] issues"?

Federal Court. Does the principle according to which a failure on the part of an administrative decision-maker to make an obvious inquiry can be a ground of judicial review apply both s 5(2)(g) of the ADJR Act and an analogous jurisdictional error? What are the circumstances in which a court can receive evidence on judicial review? In public law, is the jurisdictional error ground of "fraud" confined to that of the decision-maker, a party, or a party’s representative?

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court. Can it be said that "interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings"? Would "an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to [the applicant's case] support the interrogatories" sought? If not, would an adjournment of the interlocutory application seeking interrogatory be appropriate?

Federal Court (Full Court). Does the word "may" in s 501CA(4) indicate a discretion? Was AAT obliged to consider best interests of minor children, even if those interests were not advanced by the appellant? If so, can it nevertheless be said that AAT "is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised"? If a child who is not a NZ citizen is granted a subclass 444 visa under s 78(1), does it immediately cease to have effect? If a person's visa is cancelled under s 501(3A), is a visa granted to their child under s 78 cancelled by operation of s 140(3)? If so, does the revocation of a visa cancellation under s 501CA(4) have the effect of nullifying a consequential cancellation under s 140(3)? Does Teoh still have work to do?