Case Law Updates

Federal Court. In determining whether it was legally unreasonable for the Tribunal not to adjourn the review, was it relevant that: the Appellants were self-represented; there was no time sensitive aspect to the Tribunal’s review, as the visa and review applications had been on foot for a long time; the Tribunal advised the Appellants only a few weeks before the hearing that it would be considering a provision not considered by the delegate? Can a request for an adjournment be implicit, depending on the circumstances?

Federal Court (Full Court). For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the Federal Circuit Court to be "scrutinised narrowly and with an eye for error"? Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?

Federal Court. Were the financial capacity criterion and enrolment criterion not entirely independent, with the result that the Tribunal's finding on the latter did not render its error on the former immaterial?

Federal Court. Is it "appropriate to use the shell of an old action to commence fresh proceedings including against a new party when that proceeding has been resolved"? Were answers in the form of "I don't remember" to an interrogatory administered to the Minister improper?

Federal Court (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?

Federal Court. Must the deferral of the assessment of non-refoulement obligations to a subsequent protection visa application process be legally reasonable?

The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality

Federal Court. Was the Tribunal required to identify, in its determination of both the “serious reasons” in s 5H(2) and the “serious non-political crime” in s 5H(2)(b) of the Migration Act 1958 (Cth), the alleged “crime” and analyse its elements? Although s 5H(2) required the decision maker to "consider" whether the elements in ss 5H(2)(a), (b) or (c) are met, can it ask itself whether it "suspects" or "believes" that they are met?

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

Federal Court. Was the Tribunal required to advise the applicant of his entitlement to seek a short adjournment so that he could provide statements from one of more of his siblings in Australia?