Case Law Updates

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. Can it be said that "the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

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. 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)"?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

Federal Court. Is a random act of criminal violence "persecution" for the purposes of s 5J(1) of the Migration Act 1958 (Cth)? If not, but such random acts are committed for reasons of race, religion, nationality, political opinion or membership of a particular social group and those acts are tolerated by State authorities resulting in a systematic failure to apply the law to the perpetrators, can there be persecution for the purposes of s 5J(1)?

Federal Court. Should the Court draw a Jones v Dunkel inference that the Applicant would not have been able to provide any further explanation as to the required extension of time within which to apply for judicial review that would assist him, despite the Applicant’s self-representation at the time he applied for an extension of time?

High Court: Unbeknown to the 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". It eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant. IAA's reasons: stated that IAA "had regard to the material referred by the Secretary"; did not refer to additional material. Did the giving of additional material result in: a material "failure of a precondition to the exercise of the jurisdiction of the [IAA] to conduct a review"; a reasonable apprehension of bias on the part of IAA?

Federal Court (Full Court): ordinarily, a subclass 820 visa application will be decided first and the 801 second. However, decision makers can reverse that order in some circumstances; perhaps that means that a TSS visa can be refused before nomination is processed in some circumstances, thus denying review rights to visa applicants