Case Law Updates

Federal Court (Full Court). Was Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 wrongly decided?

Federal Court (Full Court). FCAFC held in Ibrahim that Minister misapprehended s 501BA(2) by believing it prohibited him from affording natural justice. Here, Minister admitted to FCA that if Ibrahim applied to s 501(3), he "proceeded on the basis of the alleged misapprehension". After admission but before FCA's decision,  FCAFC held in Burgess that Ibrahim applied to s 501(3). FCA then decided that Burgess and Ibrahim were correctly decided, but that Minister's admission was not conclusive. Was FCA wrong? Further, for the purposes of the materiality test, Ibrahim held that the judicial review applicant had to prove what he would have done had misapprehension not occurred, with which FCAFC (differently constituted) disagreed in Nguyen. 

Federal Court: Appellant's previous counsel made a "deliberate decision to not argue before the [FCCA ground 1 now relied upon]". Was it "unjust for Appellant to be bound by error made by counsel"? Ground 2: Appellant applied to AAT and gave a Gmail address for correspondence. AAT sent email to the Gmail address and Appellant replied from it, CCing a Hotmail address. Appellant then sent AAT several emails from Hotmail, but never formally indicated a change of email address. AAT sent invitation to comment on adverse information to Gmail address, but Appellant claimed he did not receive it. Did the Hotmail address fit the description of "last email address ...  provided to the Tribunal", under s 379A(5)(d)? If so, did it also fit the description of "provided to the Tribunal ... in connection with the review", under s 379A(5)(d)? Is it essential that a "change of contact details" form be completed?

Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?

Federal Court (Full Court). The appellant Minister sought to set-off a costs order made in the respondent non-citizen's favour out of a costs order made in the Minister's favour in previous court proceedings. Did the primary judge's exercise of discretion, refusing to allow the offset costs because this would discourage lawyers from acting on a conditional basis, miscarry?

Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

Federal Court (Full Court). Is the change of legal representation on appeal usually sufficient to justify the grant of leave to rely on ground of judicial review not relied on at first instance?

Federal Court. Did para 9.1(2) of Direction 90 "require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct"?

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

Federal Court (Full Court): The Appellant answered "no" to the following question in a visa application form for subclass 300 (prospective marriage): "If you are in a de facto spouse, fiancé(e) or interdependent relationship, are you related to your partner by blood, marriage or adoption?" That same question was asked in the application form for visa subclasses 820/801 (partner) and the same answer was given. As the Appellant was a first cousin of the sponsor, did she fail to satisfy s 101 by providing incorrect information?