Case Law Updates

Federal Court. If a merits review (Tribunal) applicant appoints an authorised recipient, the Tribunal sends the authorised recipient a letter requesting the applicant to give information, comment or response and the authorised recipient does not inform the applicant of the existence of that letter, does it necessarily follow that: the Tribunal may make a decision without taking any further action; the applicant will not be entitled to a hearing?

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?

Federal Court: AAT found that a forensic psychologist "was argumentative and defensive ... and did not present as an impartial witness". Although "it will usually be necessary for a decision maker to give reasons for an adverse credit finding", does the same principle apply to expert witnesses? Further, FCA held that the AAT's failure to take into account a claim about a consideration was not material because the Tribunal had already accorded that consideration "considerable weight" in favour of the Applicant.

Federal Court (Full Court). Does legal professional privilege apply in the context of dealings with the Department or the Tribunal? If so, does the privilege apply only if the representative acts in his/her capacity as a lawyer? If so, is it relevant whether the representative identifies him/herself as a lawyer? Does the privilege apply if the representative is a non-lawyer RMA? Will the "Deregulation" legislation change the answer to any of those questions?

Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides that "[a] person is eligible to become an Australian citizen if the Minister is satisfied that the person ... is of good character at the time of the Minister's decision on the application". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?

Federal Court. The applicant was notified that his visa was cancelled under s 501(1) of the Migration Act 1958 (Cth). About a month later, upon request, he received a second notification of the same cancellation, as he lost the first one. Did the second notification reset the deadline under s 500(6B) for the making of a valid Tribunal application?

Federal Court. In the context of s 501CA(4), was the AAT bound by the sentencing remarks of the District Court? Does the decision of the Full Court in WKMZ remain authoritative despite the High Court decision in AJL20?

Federal Court. In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". Is reasonable conjecture applicable in the context of an assessment of the materiality of errors in the form of misinterpretation of s 473DD of the Migration Act 1958 (Cth)? If so, is the standard of reasonable conjecture also undemanding in such a context?

Federal Court. Was it legally unreasonable for the Tribunal to refuse to wait for the outcome of merits review concerning the nomination of a position relating to a subclass 457 visa application before reviewing a decision to refuse to grant the subclass 457 visa?