Case Law Updates

High Court. Can it be said that s 494AB of the Migration Act 1958 (Cth) does not take away the jurisdiction of any court to hear and determine proceedings of the kinds described in s 494AB(1), but rather provides the Commonwealth with a defence to those claims if they are made in a court other than the High Court? If so, could proceedings instituted in the High Court in relation to the matters identified in s 494AB(1) be remitted to another court for hearing and determination without s 494AB providing an answer or defence to the claim?

Federal Court (Full Court): AAT dismissed application under s 42A of AAT Act. Applicant applied for reinstatement of that application. AAT refused to reinstate on the assumption that, if it reinstated, the original decision would be affirmed by operation of s 500(6L) of the Migration Act, thus rendering reinstatement useless. Was that assumption wrong? If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance?

Federal Court. If the Minister personally makes a decision under s 501CA(4): is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations; must he give "reasons as to why the expectations of the Australian community should count against revocation"? Must s 501CA(4) decisions  be made within a reasonable period of time? May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

Federal Court. Combined effect of ss 360(2)(c) and (3) is that an applicant is not entitled to appear before AAT if s 359 applies to the applicant. Subsection 359C(1) applies if a person is invited under s 359 to give information and does not do so within the deadline. Section 363A provides that AAT has no power to permit a person to do a thing if a provision states that the person is not entitled to do that thing, unless a provision "expressly provides otherwise". Does s 363 "expressly [provide] otherwise" by giving AAT the power to "take evidence on oath or affirmation" or to "summon a person to appear"?

High Court (single Justice). Does the common law, once determined, operate both prospectively and retrospectively? In other words, if an administrative decision-maker decides a case based on the law as then understood, but that understanding then changes, does the new understanding apply ab initio?

Federal Court. In NZYQ, the High Court overruled its decision in Al-Kateb. Here, at the time of the Minister's decision, Al-Kateb was still considered good law. Did the Minister's reliance on Al-Kateb shield his decision from jurisdictional error, as it represented the law at the time? Or has NZYQ rather overruled Al-Kateb ab initio (i.e. with retrospective effect)?

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. In reviewing a decision made under s 501CA(4), did the Tribunal deny the appellant procedural fairness by failing to put him on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against him?

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. Due to s 500(6L), AAT had 84 days to decide under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa. At the time of AAT's decision, Applicant still had about 6 years of imprisonment to serve. Could AAT make a legally reasonable decision about the risk the Applicant would present to the community upon release 6 years in advance? Did AAT have "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?