Case Law Updates

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

Federal Court (Full Court): Where a Minister 'relies on the assessment of a Departmental officer and an officer ... within the Department withholds ... a not insignificant part of that assessment, ... the Minister will be taken to have failed to take that not insignificant material into account'

High Court: Unbeknown to the Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c). However, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant. IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case". It eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant. IAA's reasons: stated that IAA "had regard to the material referred by the Secretary"; did not refer to additional material. Did the giving of additional material result in: a material "failure of a precondition to the exercise of the jurisdiction of the [IAA] to conduct a review"; a reasonable apprehension of bias on the part of IAA?

Federal Court (Full Court) extends the High Court's materiality test in Hossain: 'the requirement of materiality for there to be jurisdictional error applies to a court as much as it does to an administrative decision-maker'

Federal Court. For the purpose of s 501(6)(c)(ii) of the Migration Act 1958 (Cth), can the communication of a belief, or the existence of an uncommunicated belief, be considered "present general conduct"? Further, there are 2 incidents of the common law procedural fairness rule: 1) to give an affected person an opportunity to comment on adverse material obtained from other sources; 2) to identify to them issues not obviously open on the known material. Were these incidents excluded by s 51A(1)?

Federal Court. The grounds of appeal formulated by the self-represented appellant "do not appropriately articulate any appellable error by the primary judge. On their face, they simply ask this Court to detect jurisdictional error in the Tribunal’s decision". Would it be wholly inappropriate to read those grounds of appeal "as asserting that the learned primary judge erred by failing to detect the jurisdictional errors identified in grounds one and two"?

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court. In MZAPC, the High Court held that an error in the form of non-compliance with the condition that the "ultimate decision" that is made lie within the bounds of reasonableness is material by definition and thus jurisdictional. Does that ruling apply to legal unreasonableness in the decision-making process?

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

Federal Court (Full Court): In considering a visa application, the Minister may get any information that he/she considers relevant. If the Minister gets such information, he/she must have regard to that information in deciding whether to grant a visa (s 56). The question to the 5 judges was whether, after getting about 800 pages of materials submitted by a non-citizen, the Minister was required to have regard to all of the relevant information.