Case Law Updates

High Court. Should the hypothetical, fair-minded lay observer be attributed with knowledge "that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them"?

Federal Court (Full Court). In the High Court's decision in CNY17: unbeknown to Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c); however, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant; IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case"; IAA eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant; IAA's reasons stated that it "had regard to the material referred by the Secretary", but did not refer to additional material; HCA held the giving of additional material resulted in a reasonable apprehension of bias on IAA's part. Here, IAA expressly disavowed reliance on prejudicial material. Was that sufficient to avoid apprehension of bias?

Federal Court (Full Court). Can the Tribunal act on its personal or specialised knowledge and on matters which are commonly known? Does the discharge of the onus placed on the judicial review applicant to prove that a finding by the Tribunal, which required evidence but was one in respect of which there was not a skerrick of evidence, was material to the outcome require proof that the finding was erroneous?

Federal Court. In determining whether a time extension to file a judicial review application should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?

Federal Court. Is the validity of an application to the Tribunal under s 500 of the Migration Act 1958 (Cth) a jurisdictional fact? By finding that the review application was out of time, did the Tribunal implicitly found that that application was invalid? Did the mere sending of a bundle of documents to the Tribunal constitute a valid Tribunal application?

Federal Court. Was the FCA decision in AJL20 plainly wrong? Was it reasonable for the Department to enable the Applicant's Tribunal review application to be determined before he was in fact removed to Vietnam? Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal"?

Federal Court. Appellant's protection visa application was refused. At AAT, he claimed that, if returned to his home country, he would be homeless and destitute due to his financial predicament and would be detained as a result. Generally speaking, s 210 of the Migration Act 1958 (Cth) provides that a non-citizen is liable to pay the Commonwealth the costs of his/her removal or deportation. In determining whether Appellant would become homeless in his home country, should AAT have considered the effect of s 210, which would impose a further financial burden on him?

Federal Court (Full Court). Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right [such as the privilege against self-incrimination] may for that reason be characterised as legally unreasonable"?

Federal Court. Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive? Was revocation decision a mandatory relevant consideration in the context of AAT's review of the non-revocation decision?

Federal Court. Should Direction 65 be read down to be consistent with the Family Law Act 1975? Was AAT required to "give weight to a right, value or interest recognised by statute, international instrument or the common law"? Is Direction 65 inconsistent with that Act? Does the Convention on the Rights of the Child inform the interpretation of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65? Is Direction 65 delegated legislation? If not, is it anyway sensible to assume it intended to give effect to Australia's obligations under international law? Is Direction 65 inconsistent with the common law principle of parental responsibility?