Exceptions to the rule against re-litigation

Federal Court: Parties to a court dispute cannot litigate the same issues more than once, although appeals are not considered re-litigation. There are exceptions to the rule against re-litigation: res judicata, issue estoppel and Anshun estoppel, which are "subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes"; abuse of process by re-litigation; untenable claims; and judgement obtained by fraud.

Delay in making judicial decision

Federal Court (Full Court). FCCA reserved for 5 years its judgement on an application under s 477 of the Migration Act 1958 (Cth) for an extension of time within which to make a judicial review application. Did the FCCA make a jurisdictional error by failing to take into account its own delay in determining the application for an extension of time? Can delay be sufficient to infect a judgement with jurisdictional error?

CGX20 distinguished?

Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?

AAT required to disregard entire hearing due to interpreting issues?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?

Does reference to family include future family?

Federal Court (Full Court). "In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials". Does that apply to s 501 visa refusals? In application for subclass 201 visa, Appellant argued he and his "family" (i.e. parents and siblings) had humanitarian claims. He then married, had a child and notified DHA of that. Can it be said that, "once the marriage and the birth were notified..., there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child"? Is subclass 201 a protection visa, with the result that, according to BAL19, s 501 should not have applied?

Was there a “matter” before the FCAFC?

High Court. Is it necessary for there to be a "matter" before the Full Court of the Federal Court for it to have jurisdiction in an appeal? If so, can it be said that there was no "matter" before the Full Court "because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals"?

The interplay between ss 476A(2) and 196(4)

Federal Court. Under s 196(4) of the Migration Act, if a person is detained as a result of a visa cancellation under provisions such as s 501, "the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen". Interpreting s 196(4) in isolation, a court would have no power to make a non-final (i.e. interlocutory) order for the release of a person to whom that provision applies. However, s 476A(2) provides that, where the FCA has jurisdiction in relation to a matter, that jurisdiction is the same as the High Court's. Does s 476A(2) give the FCA the power to make an interlocutory order for the release of a person to whom s 196(4) applies?

AAT bound by delegate’s decision?

Federal Court. Delegate mandatorily cancelled visa under s 501(3A) on character grounds, but then revoked that cancellation under s 501CA. Applicant offended again and delegate mandatorily cancelled visa under s 501(3A) again, but this time did not revoke the cancellation. AAT affirmed non-revocation decision. Can it be said that, as earlier revocation decision formed part of the background facts against which AAT came to exercise its review jurisdiction, the facts before the AAT were not the same as those before the delegate at the time of revocation, with the result that AAT was not bound to follow that revocation decision?

cl 14.5 of Direction 79: offsetting of factors allowed?

Federal Court. Was the Tribunal allowed to 'net off’ or offset against one another the various factors that it took into account when considering under cl 14.5 of Direction 79 the extent of impediments that the Applicant may face if removed from Australia?

Teoh extended to Art 12(4) of ICCPR?

Federal Court (Full Court). Does the ratio decidendi of Teoh extend to relevant provisions of other international treaties, including Art 12(4) of the ICCPR? If so, is the concept of "legitimate expectation" discussed in Teoh subject to any contrary indication by the legislature or executive? If so, does the Migration Act 1958 (Cth) contain such a contrary indication by the legislative?

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