Case Law Updates

Federal Court: Cl 8(4) of Direction 65 provided: "Primary considerations should generally be given greater weight than the other considerations". AAT quoted that clause but eventually noted "the requirement that primary considerations should be given greater weight than the other considerations". Did AAT misinterpret cl 8(4)? Did AAT misinterpret cl 14.2(1)(a) by saying it was required to place less weight on how long the Applicant had resided in Australia "because of the limited positive contribution to the Australian community"? If so, was that error material? Is materiality a binary or balancing test? Despite Applicant's clearly articulated claim regarding the impact non-revocation would have on his family, pursuant to cl 14.2(1)(b), AAT made no finding in that regard. Should FCA infer from AAT's recitation of 14.2(1)(b) that it considered that claim? Did AAT misinterpret DHA's warning letter to Applicant?

Federal Court: Certiorari lies for errors of law on the face of the record (ELFR), whether or not those errors are jurisdictional (Kirk). However, under s 474, certiorari does not lie for ELFR for privative clause decisions (PVC). As a result, certiorari lies for PVC only if the error is jurisdictional, despite the fact that reasons of admin decision-makers comprise the record. FCCA orders comprise the record (DMI16), although its reasons do not (Craig). Appeals to FCA of FCCA decisions to dismiss applications for time extension are precluded by s 476A(3). Thus, FCA can only set aside those decisions under s 39B of Judiciary Act 1903 and if FCCA made a jurisdictional error or if there are ELFR in FCCA decisions. Does the materiality test apply to ELFR in FCCA decisions? If FCCA's reasons state the orders to be made, does record incorporate those reasons? Do the "alleged jurisdictional errors of the Tribunal become jurisdictional errors of the" FCCA?

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

Federal Court: If an administrative decision-maker takes into account facts existing at the time of decision and those facts change after a decision is made, can it be said that the decision was legally unreasonable?

Federal Court (Full Court): Is para 12.3(1) of Direction No 65 concerned with the effects of a crime on a victim and their family? Or is it concerned with the additional impact of a decision to grant a visa on the victim and their family? If the latter applies: could AAT nonetheless deal with Appellant's criminal conduct as "an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1)"; if AAT treated para 12.3(1) as concerned with the effects of the crime (as opposed to the effect of visa grant) on the victim and their family, does it necessarily follow that AAT made a jurisdictional error?

Federal Court: Appellant made an unsuccessful judicial review application to FCCA, which delivered oral reasons for judgement, but those reasons were not interpreted to Appellant. Appellant appealed to FCA just before the statutory deadline, but FCCA's reasons were only published more than a month after the appeal was filed. Minister argued to the FCA that "there was no denial of procedural fairness ... because the appellant in fact filed a notice of appeal on time, and did not seek to amend it once he did receive a copy of the [FCCA's] reasons". The content of the contemporaneous reasons were not known to the FCA nor the Minister or the Appellant. Did FCCA deny Appellant procedural fairness? If so, what remedy should the Appellant be given?

Federal Court: Ministerial Direction No 65, now replaced by Direction No 79, provided as follows: "Where the [DFAT] has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making that decision". Are decision makers obliged to consider DFAT reports when making decisions to which Direction No 65 applies?

Federal Court: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction 65, which makes the time a non-citizen "has spent contributing positively to the Australian community" a mandatory consideration? If not, may there be "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"? If so, was the present case one of those circumstances? Further, s 43(2B) of the AAT Act requires the AAT to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Does it follow that everything stated in the AAT's reasons is material to its decision?

Federal Court: Judicial review Applicant was invited under s 501CA(3) to make representations seeking the revocation of the mandatory cancellation of his visa on character grounds under s 501(3A). Invitation attached a form which included health questions. Applicant gave details of health conditions and medications and invited Department to contact his doctor. Can it be said that, "by inviting the applicant to make representations in a particular form, the Minister was under a statutory obligation to consider the representations made" and that by "not obtaining and considering the medical information that the applicant intended to form part of his submissions, the Minister ... breached that statutory duty or denied the applicant procedural fairness"?

Federal Court (Full Court): This decision indirectly prompts the question of whether and how it possible to avoid, in some circumstances, the restraint placed on the IAA on receiving "new information". Did the Secretary breach s 473CB(1)(c) "simply on the basis that [some documents] were in the Department’s possession or control and were not considered for relevance by the Secretary"? If not, does s 473CB(1)(c) only require the Secretary to consider documents of which he/she is aware? If not, should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control"?