Case Law Updates

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?

Federal Court. Subsection 34(2) of the Australian Citizenship Act 2007 (Cth) provides that the Minister may revoke a citizenship if, among other things, the subparagraphs in s 34(2)(b) are satisfied, such as the person having been convicted of an offence under s 50 of that Act or having obtained citizenship as a result of migration-related fraud. Is the discretion under s 34(2) limited to considerations of the circumstances within s 34(2)(b)? Paragraph s 34(2)(c) requires the Minister to be "satisfied that it would be contrary to the public interest for the person to remain an Australian citizen". In applying s 34(2)(c), can decision-makers consider only what is "contrary to", rather than "in", the public interest?

Federal Court. Does it matter for the purpose of s 501(7)(c) the country where a non-citizen is sentenced? Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events? If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?

Federal Court (Full Court). Does legal professional privilege apply in the context of dealings with the Department or the Tribunal? If so, does the privilege apply only if the representative acts in his/her capacity as a lawyer? If so, is it relevant whether the representative identifies him/herself as a lawyer? Does the privilege apply if the representative is a non-lawyer RMA? Will the "Deregulation" legislation change the answer to any of those questions?