Case Law Updates

Federal Court. Did cl 8.1.1(1)(d) of Direction 110 require the identification of a person or persons affected by the offending or the conduct?

Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?

Federal Court. Can it be said that ss 362B(1A), (1B), (1C), (1D), (1E), (1F) and (1G) of the Migration Act 1958 (Cth) "are not an exhaustive statement of the steps the Tribunal might take in circumstances of non-appearance at a hearing as s 362B expressly preserves by s 362B(2) the power of the Tribunal to make a decision to reschedule the applicant’s appearance before it or to delay its decision on the review in order to enable the applicant to appear before it at a rescheduled hearing"?

Federal Court (Full Court). "Where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, [does it necessarily follow] that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information"? In determining a claim of apprehended bias where the Secretary provided the Tribunal with irrelevant, but highly prejudicial, material in the context of Part 7 of the Migration Act 1958 (Cth), what is the knowledge attributable to the hypothetical fair-minded lay observer?

Federal Court: "the information before the Tribunal ... contained some hearsay rather than firsthand information". Can administrative decision-makers accept hearsay?

Federal Court. Even though the applicant had not been convicted in court, the Tribunal found that he had been 'convicted'. Did the Tribunal finding involve a misinterpretation of the law? Could the Tribunal have reasonably considered the view of the applicant's minor child to love the applicant to be irrelevant to the best interests of the child?

Federal Court. Should there be an implication in s 198(6) of the Migration Act 1958 (Cth) that "the duty imposed on an officer to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion to lift the bar under s 48B(1), until after the Minister made a procedural decision, through the Department following his instructions in the Guidelines, that the request was in a class of case that he either would or would not consider"?

Federal Court. Appellant had to satisfy the following time of application criterion under cl 890.211 of Sch 2 to the Migration Regulations 1994 (Cth): "The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made". She also had to satisfy the following time of decision (TOD) criterion under cl 890.221: "The applicant continues to satisfy the criteria in clauses 890.211...". A delegate of the Minister refused to grant the visa and the Appellant applied to the Tribunal for merits review. Should the Tribunal determine the TOD by reference to the time of the delegate's decision? Or should it determine the TOD by reference to the time of its own decision?