Case Law Updates

High Court. Does an order for costs in favour of an unincorporated law firm entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm?

  Federal Court. Will a cancellation decision under s 501(3A) be invalid if it is based on the existence of a “term of imprisonment of...

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

Federal Court (Full Court). Was the consequence of s 347(1)(c) of the Migration Act 1958 (Cth) and r 4.13(4) of the Migration Regulations 1994 (Cth) that an amount of 50% was payable whether or not the “Request for Fee Reduction” was ultimately successful? If a Tribunal application is not accompanied by the application fee, does the Tribunal have a duty to review the decision?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

Federal Court: this decision provides a useful summary of previous court decisions concerning apprehension of bias and the Immigration Assessment Authority

Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?

The AAT 'had the power to extend time and ought to have treated [the review application] as a proper or at least a constructive application for an extension of time'.

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?