Case Law Updates

Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?

Federal Court. Can it be said that, "given the evidence of the applicant’s statelessness and the purpose of the abandoned child provision, irrespective of the applicant not having been born in Australia, the delegate was required to ascertain whether the applicant possessed the nationality of another country, as an essential step of proving “the contrary” under s 5(3)(b)" of the Australian Citizenship Act 1948 (Cth)?

High Court (single Justice). Can it be said that, although "a separate visa was granted to each of the First, Second and Third Plaintiffs, nevertheless the Second and Third Plaintiffs were each a "holder" of the Protection visa granted to the First Plaintiff"? Was r 2.55 of the Migration Regulations 1994 (Cth) a prescribed method for the giving of a NOICC under s 119(2) of the Migration Act 1958 (Cth)?

Federal Court. Can the Tribunal determine for itself that it will not comply with a court order until it is known whether such an order is overturned by a higher court?

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?

Federal Court. Did para 9.4(1) of Direction 99 apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company? If so, did the Tribunal misinterpret para 9.4(1) in circumstances where the Applicant was self-employed?

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?

Federal Court. Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?

Federal Court. Should it be inferred that the reason why the Minister determined the visa application shortly after the judicial review application was filed is that he capitulated and recognised that the Applicant would succeed in his claim to a writ of mandamus, with the result that the Respondents should pay the Applicant's costs incurred until the time of the visa grant?

Federal Court: The Appellant provided the Immigration Assessment Authority (IAA) with untranslated documents. Was the IAA required to obtain a translation of those documents?