Case Law Updates

Federal Court (FCA). If the FCA does not have jurisdiction to determine a judicial review application of a migration decision filed with it but the Federal Circuit and Family Court (FCFC) does, does the FCA nevertheless have power to transfer that application to the FCFC?

Federal Court (Full Court): 'it will not always be illogical or irrational to place “some weight” on anonymous information'

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

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

Federal Court. Must there be something exceptional about that which is said to be 'in the national interest' under s 501BA(2)(b) of the Migration Act 1958 (Cth)?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court. Can the test concerning the materiality of an error be expressed in the following way: "absent a Court being satisfied that, but for the breach, there is a reasonable possibility that different outcome could have been reached by a decision maker, a failure to accord natural justice will not be jurisdictional error"?

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: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Federal Court. Does the "gravity of the obligation upon the [IAA] to make a determination about whether Australia’s protection obligations w[ere] engaged" inform the determination of whether the IAA's power under s 473DD was exercised legally reasonably? Was it "open to the [IAA] to have regard to the inherent implausibility of the new information when considered in light of other information already before it for the purpose of determining whether it constitutes “credible personal information”within the meaning of s 473DD(b)(ii)"?