Case Law Updates

Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?

'it was legally unreasonable for the Tribunal to make its decision in this case without waiting for the Minister to make his decision on the nomination approval application, particularly... where the Minister had said about five weeks earlier that the application was progressing...'

Federal Court. Can it be said that the obligation under s 360 of the Migration Act 1958 (Cth) to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened? Are issues which emerge during a hearing also subject to the obligation imposed by s 360?

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?

Federal Court. In order for an error (or errors) in the form of legal unreasonableness in a decision-making process to be labelled "jurisdictional", is it necessary for the materiality of the error to be established as a separate, additional element? Does Makasa apply to s 501(1)? In exercising the power under s 501A(2) to override a decision of the Tribunal, can the Minister rely on matters that were known to him at the time of the Tribunal hearing but not put by him (or on his behalf) to the Tribunal?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...

High Court. Does functus officio address the capacity, or authority, to adjudicate a matter, whereas estoppel addresses the capacity of the litigants to litigate a matter?

Federal Court. Can it be said that "evidence that a particular cohort of persons has a 13% chance of recidivism is equivalent to a statement that 13 out of 100 persons in the cohort will reoffend but that evidence, by itself, says nothing about the likelihood of a particular member in the cohort reoffending"? Did cl 6.3(5) contain a mandatory consideration? Are the offences to which cl 13.1 of Direction No 79 is directed "violent and/or sexual crimes against women, children and vulnerable members of the community"?

Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?

Federal Court (FCA). If the FCA has jurisdiction to determine a claim for damages for false imprisonment and habeas corpus on the basis that the Respondent failed to remove the Applicant from Australia as mandated by s 198, does 476A exclude the FCA's jurisdiction to entertain the Applicant’s claims for injunctive relief requiring the Respondent to discharge its duty under s 198 or to declare that the Respondent failed to comply with that duty? Can the FCA issue a peremptory writ of mandamus?