Case Law Updates

Federal Court. The AAT carried out a hearing and then invited the Appellant in writing to a second hearing, seeking to "provide [her] with an extended opportunity to address any concerns or issues arising from the evidence before it". The Appellant's RMA would be on maternity leave on the date proposed for the second hearing, so she requested another date. The AAT then cancelled the second hearing and sent a s 359A letter instead, setting out what would be the reason for affirming the delegate's decision and inviting comments. Was the AAT obliged to proceed with the second hearing?

High Court. Is there a "principle in Australian common law respecting the single legal personality of spouses"? In other words, do husband and wife form a single person at common law? Does or did the Australian common law include "a rule by virtue of which the common law of conspiracy does not apply to spouses"?

Federal Court (Full Court). Can it be said that, "absent prior notice here that the weight that the Tribunal might attach to its consideration of the best interests of affected children would be less than the weight that it might attach to its consideration of a different matter or circumstance, procedural fairness would be denied"?

Federal Court. Was there a need for the IAA's assessment of the credibility of a letter to coincide with that of the delegate? Entry interview form for unauthorised maritime arrivals asked: "1. Why did you leave your country of nationality (country of residence)? ... 7. Were there any armed groups, political groups, or religious groups operating in the area you lived?" Was Question 1 of the entry interview form asking about reasons for not wanting to return? Could Question 7 of the entry interview form be read as eliciting information about the receiving end of conduct? Is IAA required to give reasons for why it finds an applicant lacks credit?

Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?

Federal Court. As the decision that the applicant sought to compel by mandamus was made favourably to him, with the result that he obtained the practical outcome he pursued, should he be awarded costs? If so, should those costs be offset by costs which the applicant was awarded to pay in a previous court proceeding?

Federal Court. Would an error in exercising the power in s 501(3A) more than once in respect of the same failure to pass the character test in s 501(3A)(a) not be material if a separate conviction and sentence existed which, although not relied upon for the purpose of s 501(3A)(a), on its face met the threshold of the Minister being satisfied as to an applicant having "a substantial criminal record"?

Federal Court. When a single judge of the FCA disagrees with previous decisions of single judges of the FCA, is the question whether those previous decisions should be followed out of comity, rather than whether they are "plainly wrong"? Is a translation provided to the IAA, but not to a delegate, of a document that was before the delegate "new information" for the purpose of s 473DC of the Migration Act 1958 (Cth)?

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: "There are a number of troubling aspects of the Tribunal’s reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following... The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual".