Case Law Updates

Federal Court. On 24 June 2020, FCA ordered Home Affairs Minister to decide a protection visa application by 3 July 2020 at noon. On 1 July 2020, Minister's lawyers sent an email saying that Minister was not available to personally make the decision within the timeframe and asking for variation of the order so that any other portfolio Minister could make the decision. On 2 July 2020, FCA accepted that request and ordered Home Affairs Minister to either personally make the decision or ensure it will be made by another portfolio Minister or a delegate by 3 July 2020 at noon. Applicant sought orders directing the institution of contempt proceedings in the event of non-compliance with the latest orders. If those orders are not complied with, could any explanation for non-compliance require an affidavit by the Minister personally and for the Minister to make himself available for cross-examination in contempt proceedings?

High Court. Is a non-disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) "new information" within the meaning of s 473DC? If so and the IAA treats a certificate as valid and exercises the power conferred by s 473GB(3)(a) to have regard to the information protected by the certificate, can the IAA be taken to have considered that the certificate itself "may be relevant" within the meaning of s 473DC(1)(b)?

Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...

Federal Court. Is the materiality threshold high? Can individual errors which in and of themselves are immaterial nevertheless be cumulatively material?

Federal Court. Appellant had pleaded guilty to manslaughter. In personally deciding under s 501CA(4) whether there was "another reason" to revoke the mandatory cancellation of Appellant's visa, Minister found that "further" offending of a violent nature by the Appellant could result in serious physical harm to members of the Australian community. Was Minister's decision legally unreasonable in that, although Appellant's conduct led to a violent outcome (death), the nature of the conduct was not violent, as there was no intent to harm? Is a subclass 444 visa a "limited stay" visa?

Federal Court. The sponsorship form for a carer visa application required sponsor's partner to sign that form, giving her approval to the sponsorship. Both the sponsor and partner signed form 40. Is a sponsorship valid if sponsor does not understand nature of the sponsorship obligations? Does the partner's signature on form 40 itself constitute sponsorship by the partner? Can carer visa applicant change sponsors after visa application is lodged?  DHA received a webform from informant about Appellant and provided AAT with webform and non-disclosure certificate issued under s 376. Was certificate invalid in that it was impossible to identify who the informant was and that the only information the informant sought to conceal was his/her identity?

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?