Case Law Updates

Federal Court (Full Court). Is the power conferred by s 501 to refuse to grant a visa "exercised in the performance of the duty imposed by s 65(1)(b) to refuse to grant the visa for the reason that the grant of the visa is prevented by s 501"? In BAL19, FCA decided that s 501 did not apply to protection visa applications. Was BAL19 wrongly decided? Must the power under s 501A(2) be exercised within a reasonable period of time? If so, was a period of 18 months unreasonable?

Federal Court (Full Court). If a court treats the materiality threshold other than being very low, does it run the risk of engaging in impermissible merits review?

Federal Court (FCA). On 16 Jun 2020, we summarised a court decision where the Minister had said it would not comply with FCA orders as such orders were made "in error", as the Minister was of the view that FCA had wrongly decided BAL19 and was appealing that decision. In that 16 Jun decision, FCA said "there is no self-evident reason why even a Minister of the Crown should not comply with orders made by this Court and, if found guilty of contempt, liable to the same penalties as any other litigant". On 23 Jun 2020, KDSP overturned BAL19. Could FCA express any "confidence in this particular Minister making any decision “forthwith” ... or within a reasonably short period of time"?

OMARA: "The Agent claimed that he had experienced technical difficulties when lodging" a visa application for a complainant through ImmiAccount. To what extent does OMARA have access to ImmiAccount records? For instance, does it have access to records indicating when a draft application was created or saved? Further, can a client who has not paid any fees or signed an agreement make a complaint?

According to the OMARA, following a complaint, it sent a notice under s 309 of the Migration Act 1958 (Cth) to the practitioner, who asked for an extension of time to respond to the notice until the lifting of the covid-19 pandemic restrictions. Were those restrictions sufficient to justify a time extension?

Federal Court. On 10 June 2020, Flick J held that BAL19 was not plainly wrong and declared that the Minister's delay in deciding the Applicant's protection visa application was unreasonable. His Honour held on that date that it was unnecessary to issue mandamus ordering the Minister to make a decision within a deadline his Honour expected that the Minister would abide by the declaration and make a decision without delay. However, the Minister wrote to the Applicant as follows after Flick J's decision: "As the Minister has now appealed the judgment of Justice Flick, no decision will be made on your client’s visa application pending the outcome of the appeal. The Minister’s position is that s 501A is an available power in relation to your client’s visa application and that Justice Flick was in error in finding that the delay in making such a decision was unreasonable and that s 501A was not an available power in the circumstances of this matter. Any decision made prior to the resolution of the appeal as to whether BAL19 was wrongly decided would render the appeal moot". Can Ministers of the Crown be imprisoned for contempt of court?

Federal Court. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?

Federal Court. Appellant's protection visa application was refused. At AAT, he claimed that, if returned to his home country, he would be homeless and destitute due to his financial predicament and would be detained as a result. Generally speaking, s 210 of the Migration Act 1958 (Cth) provides that a non-citizen is liable to pay the Commonwealth the costs of his/her removal or deportation. In determining whether Appellant would become homeless in his home country, should AAT have considered the effect of s 210, which would impose a further financial burden on him?

OMARA found it: received 2 complaints against an RMA; sent the RMA notices under ss 308 and 309 of the Migration Act 1958 (Cth); and never received a response from the RMA after some months. Can RMAs be sanctioned on the basis of lack of response? What happens to the substance of the complaint?

Federal Court. Does the concept of proportionality play a role in determining whether an exercise of discretionary power was legally unreasonable? Does the concept of legal unreasonableness apply to individual aspects of the fact-finding of a decision-maker, such as credibility findings? Does the concept of proportionality form part of the assessment of whether a credibility finding has been made in accordance with established principles as to illogicality or irrationality?