Case Law Updates

Federal Court: Self-represented Appellant applied to FCCA, making  "reference to recognisable grounds" of judicial review, but without clearly identifying any jurisdictional errors. FCCA "generally concluded that there had been a repeated failure to 'identify any jurisdictional error'". Was FCCA's conclusion "an attempt to give content to an argument that may have some merit once properly understood"? Notice of appeal was "unhelpful". If FCA holds that FCCA provided inadequate or incomplete reasons, should it remit the matter to FCCA, differently constituted, or should it determine for itself the task of resolving the grounds of review that were before the FCCA?

Federal Court: FCA allowed an appeal by non-citizen Appellant, remitting the matter to AAT for reconsideration of Appellant's protection visa refusal. As Appellant could be unsuccessful at AAT again, he made interlocutory application under s 37AF of FCA Act, for suppression of aspects of the appeal orders, as he feared retaliation in Pakistan. "The issue is whether, to obtain an order, it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all the section requires is for the Court to be satisfied on the balance of probabilities that the order sought is necessary to protect the person’s safety". If Pakistani authorities already knew of Appellant's desertion anyway, should the suppression orders be limited to what those authorities still did not know, namely the content of his criticisms towards them?

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?

Federal Court: "On my understanding of the majority approach in SZMTA in those circumstances, read with MZAOL, where there is an admitted non-disclosure of the existence of a s 438 notification, there must be a two-step process undertaken by the supervising court on judicial review to determine “materiality” so as to arrive at a conclusion of jurisdictional error".

Federal Court (Full Court): Under the now "repaired" Medevac provisions, 2 doctors must assess ("either remotely or in person") a transitory person before that person can be brought to Australia for medical treatment. The non-citizen argued that the review of medical records of itself constituted "remote assessment". The Minister unsuccessfully argued before a single judge of the FCA that "remote assessment" must involve a consultation. The Minister appealed the single judge's decision to the Full Court.

Federal Court: AAT made 1st decision, but found out that it was affected by jurisdictional error and made 2nd decision. Both decisions affirmed delegate's decision. Appellant applied for judicial review of 1st decision, arguing that AAT was functus officio after making 1st decision (i.e. lacked power to make 2nd decision). Presumably, Appellant did so in the expectation that it would be easier to establish jurisdictional error in 1st decision. After all, AAT itself had recognised error in it. Is Bhardwaj authority for a "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever"? Or will the consequence, if any, depend upon the particular statute? Appellant argued the latter applied and relied on s 430(2A), which provided that AAT has no power to vary or revoke a decision, to argue that the AAT lacked power for 2nd decision.

Federal Court (Full Court): The mandatory cancellation provision, s 501(3A), was inserted into the Migration Act 1958 (Cth) in 2014 and obliges the Minister to cancel a visa if he/she is satisfied that a non-citizen has a substantial criminal record and is serving a full-time sentence of imprisonment. "What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?"

Federal Court: DHA refused visa under s 501(1). AAT remitted matter for reconsideration with a direction that the discretion under s 501(1) be exercised in the applicant’s favour. Minister personally set aside AAT's decision under s 501A(2) in the national interest. Minister's exercise of discretion relied in part on erroneous finding that Applicant entered AU on a false identity. In Lu, the risk of harm posed by an affected person to AU community based on the correct criminal record was a mandatory relevant consideration in the exercise of the discretion under s 501A(2). In Gbojueh, risk of harm was mandatory also in the context of determining the national interest. Should Lu be interpreted as only applying to erroneous findings in relation to a non-citizen's criminal record and thus be distinguished? Did Minister's satisfaction about the national interest involve a jurisdictional fact?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.