Case Law Updates

Federal Circuit and Family Court. The Tribunal refused to release information under s 362A of the Migration Act 1958 (Cth), finding that disclosure was not permitted under the Australian Privacy Principle 6. Did the Tribunal make an error, in that the primary purpose of collecting such information was the same for which the delegate and Tribunal would have disclosed it, namely to assess whether the applicant was the sponsor's spouse?

Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?

Federal Court (Full Court). Would exclusion based on s 5H(2)(b) result in exclusion based on 36(2C)(a)(ii) of the Migration Act 1958 (Cth) and vice-versa? If any part of the decision on the application for a protection visa relied upon either of those provisions, must review be sought in the General Division in order to be valid? Is the conferral of jurisdiction to review a decision 'relying on' either of those provisions a conferral of jurisdiction to review every aspect of that decision?

High Court: Under s 44(2A) of Judiciary Act 1903, HCA can remit a matter involving the Commonwealth to FCA. But under s 476B of Migration Act 1958, HCA can only remit a matter that relates to a migration decision to FCA if FCA has jurisdiction under ss 476A(1)(b) or (c). Can it be said that the reach of ss 476B and 476A "is confined to applications for public law remedies in the nature of judicial review of migration decisions and so does not deprive the [FCA] of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment the result of the Commonwealth allegedly taking too long in making a migration decision to grant or refuse a visa"? Did s 486B preclude the plaintiff from bringing the claim in tort as a class action or representative proceeding?

Federal Court. Can it be said that, "given the evidence of the applicant’s statelessness and the purpose of the abandoned child provision, irrespective of the applicant not having been born in Australia, the delegate was required to ascertain whether the applicant possessed the nationality of another country, as an essential step of proving “the contrary” under s 5(3)(b)" of the Australian Citizenship Act 1948 (Cth)?

Federal Court. In Garland, the Full Court said in relation to para 8.1.1(1)(b)(ii) of Direction 99 that, "where the Direction uses the phrase “vulnerable members of the community” it means members of vulnerable groups in the community; it does not encompass an individual who has physical characteristics or particular circumstances that make them vulnerable vis-à-vis a particular perpetrator". Would the same reasoning apply if the Tribunal said that an applicant's "sheer size would have been most intimidating to the victim"?

High Court. Is the threshold of materiality additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision being vitiated with jurisdictional error? Does the applicant in an application for judicial review "bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture" called for by the materiality test?

High Court. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid because it is not supported by a head of Commonwealth legislative power or because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

High Court. Can it be said that "a decision maker, in whom is reposed a very general statutory power or discretion, can reduce the standard of procedural fairness to "nothingness" simply by deciding that the interests of those affected are irrelevant"?