Case Law Updates

Federal Court (FCA). Can a court grant mandamus by way of interlocutory relief? Does the FCA have jurisdiction or power to grant mandamus compelling...

Federal Court. In considering Direction No 79 for the purposes of s 501CA(4), should decision-makers consider the consequences of any breaches of Australia’s obligations under international law not only to the non-citizen, but also to Australia? We summarise the answers to this and several other questions.

Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?

Federal Court. "In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place"?

Federal Court (Full Court). In Jul 2017, Minister determined that s 46A bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. Was the latter criterion to be satisfied by reference to Jul 2017 or the time of the SHEV application? We also summarise the court's views on the requirements of procedural fairness concerning s 46A.

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 (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?

Federal Court. In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata or Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"? Was the Tribunal entitled to consider an ITOA and its conclusion for the purpose of s 501CA(4)? Was Tribunal required to be satisfied of Art 1C of the Convention?

Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?

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?