Case Law Updates

Federal Court. Can it be said that a protection "claim based on the need to support one’s family is more likely to “clearly emerge” from the material given the fundamental relevance of the matter in human terms"? Does the "review material" before the Immigration Assessment Authority include the delegate's decision?

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court. Would a Tribunal application to review a decision made under s 501CA(4) of the Migration Act 1958 (Cth) be invalid and of no effect if it failed to "contain a statement of the reasons for the application", as required by s 29(1)(c) of the AAT Act, even if such a statement were subsequently provided to the Tribunal, but after the deadline for a merits review application?

Federal Court: Section 430 requires AAT to provide written statement of reasons for Part 7-reviewable decisions. In Yusuf, it was held as follows about s 430: "The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material". Does the same principle apply to s 473EA, which requires the IAA to sets out its reasons for a decision?

High Court. Is the existence of a duty to afford procedural fairness a question of statutory interpretation? Is there a "strong" common law presumption, "generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness"?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?

Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?

Federal Court: Tribunal can correct errors in its written statement of reasons in the General Division, but only if they are 'obvious', immaterial errors

Federal Court. Once an act is made to detain a person under s 189 of the Migration Act 1958, is the continuation of that detention also an act under s 189? If so, is the continued detention of a person under s 189 a "migration decision", with the result that the FCA does not have original jurisdiction in an application for a writ in the nature of habeas corpus? If so, does the FCA have a residual original jurisdiction to determine whether a habeas corpus applicant is a person to whom s 189(1) can validly apply? Can 189(1) be applied by reference to a hypothetical officer? Was the Applicant "born in Australia" for the purposes of the Australian Citizenship Act 1948, despite being born in the Cook Islands? Was the Applicant an Aboriginal Australian? Were enrolment on the Commonwealth electoral roll and the issue of an Australian passport determinative of whether Applicant was a citizen?

'There is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing'