Case Law Updates

Federal Court. In a balancing exercise involving s 501CA(4) and Direction No 79, although almost all factors went in favour of revoking the mandatory cancellation of the Applicant's visa, the balance ultimately tilted against revocation. Does the fact that almost all factors went in favour of revocation deny the materiality of any errors made by AAT? In other words, could it be said that the materiality test involved a balancing (not binary) exercise in that, had the error not been made, even more weight could have been placed in favour of the Applicant, which in turn could have tilted the balance in his favour?

Federal Court. In HZCP, FCAFC had held: "The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself". Can decision-makers question and explore matters surrounding the fundamental facts of the conviction and sentence?

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)..." Does para 14.5 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

Federal Court. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

Federal Court. Non-citizen won a judicial review application at FCCA and was awarded legal costs. As non-citizen was represented on a pro-bono basis (no win no fee), those costs would effectively be paid to his lawyers. However, Minister appealed FCCA's decision to FCA and applied for a stay order relating to that costs order. Should the court infer, based on the fact that the non-citizen was represented on a pro-bono basis and some other factors, that he would not have the money to pay the Minister's legal costs if the Minister is ultimately successful on appeal, in the absence of direct evidence regarding the non-citizen's financial position? If so, should that inference justify the grant of a stay order?

Federal Court. Cl 8(3) of Direction 79 provides: "Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa". Must decision-makers make express findings on each of those considerations? When considering under cl 14.5 the extent of impediments if Applicant were removed, AAT found it "appropriate to afford the expectations of the Australian community moderate weight in favour of non-revocation", which expectations had already been considered. Was AAT allowed to double-count those expectations?

Federal Court. Delegate mandatorily cancelled visa under s 501(3A) on character grounds, but then revoked that cancellation under s 501CA. Applicant offended again and delegate mandatorily cancelled visa under s 501(3A) again, but this time did not revoke the cancellation. AAT affirmed non-revocation decision. Can it be said that, as earlier revocation decision formed part of the background facts against which AAT came to exercise its review jurisdiction, the facts before the AAT were not the same as those before the delegate at the time of revocation, with the result that AAT was not bound to follow that revocation decision?

Federal Court. When considering the exercise of his discretionary power under s 501A(2) to refuse to grant a visa in the national interest, is the nature of the visa a mandatory consideration? As Minister accepted Applicant would suffer harm if returned to NZ, should Minister have: explained why returning her to NZ would be in the national interest; considered "the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant"?

Federal Court (Full Court). This decision confirms that, when a decision-maker is balancing various factors in determining whether a criterion is satisfied and finds that such a criterion is not satisfied, the fact that it found one of those factors to go in favour of satisfying the criterion does not mean that an error in the assessment of that factor was not material to the outcome of the decision. After all, more weight could have been attributed to that factor, had the error not been made, which could have led to the criterion being satisfied.