Case Law Updates

Federal Court. Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy?

Federal Court (Full Court): 'While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned'

High Court. Did the delegate fail to comply with ss 56 and 62 of the Migration Act 1958 (Cth), and thus made a jurisdictional error, by saying that "any documents that are not translated by accredited translators in Australia, or by official offshore translators, will not be included as part of [the assessment of whether to grant a visa]"?

Federal Court. Does the principle according to which a failure on the part of an administrative decision-maker to make an obvious inquiry can be a ground of judicial review apply both s 5(2)(g) of the ADJR Act and an analogous jurisdictional error? What are the circumstances in which a court can receive evidence on judicial review? In public law, is the jurisdictional error ground of "fraud" confined to that of the decision-maker, a party, or a party’s representative?

Federal Court: A delegate of the Minister refused a protection visa application and provided written reasons, pursuant to s 66 of the Migration Act 1958 (Cth). Those reasons contained the date of the decision, but not the time. The matter was automatically referred to the Immigration Assessing Authority (IAA) under s 463CA, which required the IAA to review the decision as soon as reasonably practicable after the delegate "made" the decision. Did the fact that the letter was silent as to the time of the delegate's decision mean that there was no decision to refer to the IAA?

Federal Court. Does the fact that a particular conclusion on a particular issue is based on specialised knowledge "have the result that the rules of procedural fairness do not require that the issue be brought to the attention of an applicant if the issue is a critical or important one which is not obvious on the known material"?

Federal Court (Federal Court). Once an important underpinning of the decision in relation to several elements is fundamentally altered, is it possible to have confidence in what the outcome would have been?

High Court. Can it be said that s 494AB of the Migration Act 1958 (Cth) does not take away the jurisdiction of any court to hear and determine proceedings of the kinds described in s 494AB(1), but rather provides the Commonwealth with a defence to those claims if they are made in a court other than the High Court? If so, could proceedings instituted in the High Court in relation to the matters identified in s 494AB(1) be remitted to another court for hearing and determination without s 494AB providing an answer or defence to the claim?

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?

Federal Court (Full Court). This decision confirms that, when a decision-maker is balancing various factors in determining whether a criterion is satisfied and finds that such a criterion is not satisfied, the fact that it found one of those factors to go in favour of satisfying the criterion does not mean that an error in the assessment of that factor was not material to the outcome of the decision. After all, more weight could have been attributed to that factor, had the error not been made, which could have led to the criterion being satisfied.