Case Law Updates

Federal Court. In Mataia, FCA had decided that the principle in cl 6.3(5) of Direction No 79 is a not a mandatory relevant consideration. Does Mataia apply to cl 6.3(7)?

Federal Court. In BCR16, FCAFC explained there was a difference between “claiming to fear harm if required to return to a place and non-refoulement obligations”. Is that distinction illusory in some circumstances? Does the fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so prevent the application of s 198(2B) to him or her? Should those who advise the Minister, and his Department, "be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised"?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Can it be said that, whether an applicant is a genuine applicant for entry and stay as a student is reached by reason only of the particular criteria in cll 500.212(a), (b) and (c)? Do the words in cl 500.212(a) concern only with how long a visa applicant intends to stay in Australia? In assessing whether an applicant "is a genuine applicant for entry and stay as a student", must applicants satisfy each of cll 500.212(a), (b) and (c)? Are some of the factors in Direction No 69 also relevant to cl 500.212(c)? Did the group introduction process at the start of the Tribunal hearing amount to a denial of procedural fairness? Should a litigant be expected to put on an appeal before being entitled to settled reasons from the court below?

Federal Court (Full Court). FCA had said: "The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation". Did FCA engage in merits review by saying that mandatory considerations under s 501CA(4) which AAT had ignored "were not sufficient to outweigh those matters" and that AAT's error was thus immaterial? Does the materiality test threshold vary from statute to statute? Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness? Does the materiality threshold vary according to the type of decision within the Migration Act? Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'? Was it necessary, in order to establish the materiality of AAT's error, for Appellant to demonstrate by evidence what he would have done had error not been made?

Federal Court (Full Court). Appellant applied to FCCA for judicial review (JR) and extension of time within which to apply for JR. In dismissing time extension application, FCCA engaged in more than an impressionistic evaluation of merits of proposed grounds of review. Did FCCA make jurisdictional error by doing so? Can FCCA hear applications under ss 476 and s 477(2) together? Was the FCCA's error not material in that, had it not misconceived s 477(2), it would have decided the JR application against Appellant anyway?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

Federal Court. In Ibrahim, FCAFC had held that Assistant Minister conflated Australia’s non-refoulement obligations under international treaties with the protection obligations under the Migration Act 1958 (Cth), thus vitiating decision under s 501BA(2) with jurisdictional error. Does the same principle apply to decisions under s 501(2)? Here, did Assistant Minister incorrectly assume that Applicant’s claims would be considered in the same way if he applied for a protection visa, as the circumstances in which consideration of non-refoulement occurs are very different as between the determination of a visa application under s 65 and the exercise of the discretionary power in s 501(2)? Does Direction 75 require that the protection criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa?

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?