Case Law Updates

Federal Court (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

Federal Court (Full Court). Is s 29(1)(c) of the AAT Act satisfied by an implicit statement drawn by inference from the way in which the decision under review was identified or by documents which accompany the Tribunal application? Is the requirement to lodge an application within the prescribed time in s 29(1)(d) essential to its validity?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Federal Court. In Mataia, FCA had decided that the principle in cl 6.3(5) of Direction No 79 is a not a mandatory relevant consideration. Does Mataia apply to cl 6.3(7)?

Federal Court. In DFQ17 and BMY18, Full Court of FCA held that, in order for a notification of visa refusal under s 66(2)(d) to be valid, it had to "clearly state" the deadline for applying for merits review. As a result, the "late" AAT applications in those cases were actually not late. In Ali, a single judge of the FCA distinguished DFQ17, holding that the notification in that case clearly stated the deadline for an AAT application. As the circumstances in Ali (i.e. email notification with deadline of 21 calendar days) reflect the vast majority of notifications sent by the Department, Ali had the practical effect of indicating that the error found in DFQ17 only applied to exceptional cases. Now, another single judge of the FCA held, although in obiter (*), that Ali does not sit comfortably with DFQ17 & BMY18 and that the latter decisions should be followed.

Federal Court (Full Court). The appellant Minister sought to set-off a costs order made in the respondent non-citizen's favour out of a costs order made in the Minister's favour in previous court proceedings. Did the primary judge's exercise of discretion, refusing to allow the offset costs because this would discourage lawyers from acting on a conditional basis, miscarry?

Federal Court (Full Court). Was it open to the Minister to seek to persuade the Tribunal that the Appellant had engaged in the conduct that constituted the offence of which he was acquitted? In other words, could the Tribunal "go behind" the acquittal? In a case which is concerned with a claim of apprehended bias based upon irrelevant but prejudicial material being before the decision-maker, are the reasons given for the decision relevant to determination of whether a claim apprehended bias is made out?

Federal Court. Do the words 'counterfeit document' in the definition of a 'bogus document' in s 5(1) of the Migration Act 1958 (Cth) include "a document that is authentic in the sense that its provenance as a document is genuine but contains information that is not true"?

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?

Federal Court: Appellant made invalid protection visa application containing only claim X and then made a valid protection visa application containing claims X and Y. The valid application was refused and the Appellant then applied to AAT for merits review. The AAT considered the fact that the invalid application did not contain claim Y as indicative that the Appellant's claims were fabricated and affirmed the delegate's decision. Subsection 47(3) of the Migration Act 1958 (Cth) provided (and still does) that "the Minister is not to consider an application that is not a valid application" and also applied to the AAT. Can it be said the the AAT's consideration of the claim contained in the valid application by reference to the material in the invalid application was prohibited by s 47(3)?