Case Law Updates

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Federal Court. Was there a need for the IAA's assessment of the credibility of a letter to coincide with that of the delegate? Entry interview form for unauthorised maritime arrivals asked: "1. Why did you leave your country of nationality (country of residence)? ... 7. Were there any armed groups, political groups, or religious groups operating in the area you lived?" Was Question 1 of the entry interview form asking about reasons for not wanting to return? Could Question 7 of the entry interview form be read as eliciting information about the receiving end of conduct? Is IAA required to give reasons for why it finds an applicant lacks credit?

Federal Court (Full Court). Section s 501CA(4)(a) provides that the Minister may revoke the mandatory cancellation of a visa if "the person makes representations in accordance with the invitation". Reg 2.52(2)(b) provides that representations must be "made ... within 28 days after the person is given the notice" of cancellation. Here, the notice said that representations must be "received within 28 days". Do the terms "in accordance with the invitation" allow the notice to determine what the legislation means? Do the terms "makes" and "made" mean "receives" and "received"?

Federal Court. If a decision to cancel is made by a delegate under s 501(3A), can the Minister personally decide under s 501CA whether to revoke the cancellation?

Federal Court. Ground 2 of the judicial review application was that, in cancelling Applicant's visa, Minister failed to have proper regard to the legal consequences of that decision, the prospect of indefinite detention and the impact on Applicant's mental health. Even if the Minister were required to respond to the interrogatory in a way that supports the submission that, contrary to s 197C of the Act, no person has ever been refouled to Iraq, would that evidence be admissible? Can the collective knowledge of the Department be imputed to the Minister personally?

Federal Court (Full Court). Can the literality of words of judgments be interpreted as if they were the text of a statute? Can secondary materials such as an explanatory memorandum only be looked at if the text of a statute is ambiguous?

Federal Court (Full Court). If a decision-maker disbelieves a person on one matter, can it be said that that disbelief might be carried over to affect the decision-maker's disbelief in other matters? If so and if it is established that belief of a person's credibility on one matter was erroneously based, can it be said, in the context of assessing the materiality of an error, that that might convince the decision-maker of the need to revisit its conclusions on other matters?

Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?

Federal Court. DFQ17 held that a visa refusal notification letter must clearly convey the deadline for an application for merits review in order to comply with s 66(2)(d)(ii). Here, the following sentence was found under the heading "Registries of the [AAT]": "As this letter was given to you by hand, you are taken to have received it when it was handed to you". Did the place of that sentence render the notification unclear? The letter also read: "As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)". Did the latter sentence precisely track reg 4.31(1)?

Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?