Case Law Updates

Federal Court (Full 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? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?

Federal Court. If a party argues on appeal that they were denied procedural fairness in proceedings in the court below, is the question of whether the appeal is futile to be determined "from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review"?

Federal Circuit Court. Is a statutory declaration from a psychologist that is in "essentially conclusory terms and was relatively unsupported by evidence of her observations" sufficient to satisfy the requirements for a statutory declaration from a psychologist in IMMI 12/116? Was it "open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116"? Is the validity of an opinion expressed by persons specified in IMMI 12/116 a jurisdictional fact, in the sense of a fact that a court can and should determine for itself on judicial review?

Federal Court (Full Court). Under s 5 of the Migration Act, an "excluded fast track review applicant" includes a fast track applicant who "has made a claim for protection in a country other than Australia that was refused by that country". If a protection visa application is refused and the delegate forms the view that the applicant is an excluded fast track review applicant, that refusal is not subject to merits review. Can it be said that "the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia"?

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court. Can it be said that, "where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category"?

Federal Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Can it be said that, although the central consideration is the information in ANZSCO, "other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task"?

Federal Court (Full Court). Does the question of the materiality of an error typically (although perhaps not necessarily) arise only once a court is satisfied that the administrative decision-maker exceeded its jurisdiction in some way? Is an administrative decision-maker "relieved of its obligation to consider [a person's] contentions simply because they were not made good on the evidence"?

Federal Circuit Court: for the purposes of cancellation under s 116(1)(e), the risk to the good order of the Australian community included risk caused by actions of members of that community; those members needed not be reasonable nor identified

Federal Court (Full Court). Did para 8.3(4)(a) of Direction 90 suggest that decision-makers cannot consider periods of absence or of limited meaningful contact arising from periods during which a non-citizen is incarcerated? Was para 8.3(4)(a) ultra vires the Migration Act 1958 (Cth)?