Case Law Updates

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court. Can it be said that, "once a view is taken that a witness has been untruthful in one respect, it can and often does affect, consciously or subconsciously, the assessment of the witness’s remaining evidence, whether that other evidence was given before or after the supposedly untruthful evidence"?

Can RMAs draft statutory declarations for clients or provide them with templates? If so, to what extent? Should an RMA "doubt the information provided by ... client/s, the witnesses or the Declarants or any documents that [the RMA] has witnessed”? Does the responsibility to provide correct information lie with the person making a declaration? If a client keeps a copy of the service agreement, but the RMA does not, is the RMA entitled to payments? If "the way [an RMA] has managed [his/her] practice has proven successful over the years", does that "absolve" the RMA of his/her recording keeping obligations? Can it be said that "assisting ... clients with completing their forms and preparing their statutory declaration along with the signing of the Form 956" are sufficient to comply with cl 2.8(a), according to which RMAs must confirm client's instructions in writing?

Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?

Federal Court (Full Court). In the context of an assessment under cl 820.211(2)(d) of Sch 2, can it be said "a decision-maker, in a case where the requirements of one of the Schedule 3 criteria has been found not to be satisfied, is required to consider all of the Schedule 3 criteria, and to make factual findings with respect to each element of those criteria, before assessing whether there are compelling reasons not to apply the Schedule 3 criteria"?

Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?

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?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

Federal Court (Full Court). Can disbelief of an applicant or witness on one point subconsciously carry over to affect the decision-maker's disbelief of the same person on other points?