Case Law Updates

Federal Court (Full Court). Para 8.1.1(1)(a)(iii) of Direction 90 said that decision-makers must have regard to the fact that family violence is viewed very seriously by the Australian Government. Did para 8.1.1(1)(a)(iii) bind decision-makers to view family as very serious?

Federal Court (Full Court). If a decision-maker disbelieves a person on one matter, can it be said that that disbelief might be carried over to affect the decision-maker's disbelief in other matters? If so and if it is established that belief of a person's credibility on one matter was erroneously based, can it be said, in the context of assessing the materiality of an error, that that might convince the decision-maker of the need to revisit its conclusions on other matters?

Federal Court: Secretary must give IAA "any other material that ... is considered by the Secretary ... to be relevant to the review": s 473CB(1)(C). On judicial review, should the Secretary's subjective view on whether other material should be given to the IAA be determinative? If so, is that a question of fact? If so, who bears the onus of proving it? Secretary required to give reasons for "decision" on relevance? If not, does that make it difficult to prove that Secretary's "decision" was legally reasonable?

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?

Federal Court (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

Federal Court. Does the Briginshaw principle favour a conclusion that a person's onus of proving that they were not recklessly indifferent to fraud is low? Is there anything untoward about a client attending the office of a practitioner for the purpose of procuring their services and making an upfront payment? Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?

High Court. Was the political question posed by cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (whether the grant of a protection visa was in the national interest) answered by the decision-maker in a manner inconsistent with PIC 4001 and s 501 of the Migration Act 1958 (Cth), as the Minister found PIC 4001 to be satisfied and disavowed reliance on s 501, thus rendering the visa refusal invalid?

Federal Court. Can it be said that, "just because section 473DD requires that a new claim or evidence must not be ‘considered’ does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed"? Does that question assume that s 473DD also prohibits the consideration of new claims, as opposed to only new evidence?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?