Case Law Updates

Federal Court. The Appellant sent the Tribunal an email which stated that a document was attached. However, he forgot to attach the document. Was the Tribunal required to inquire about the missing document on the basis that it would be an obvious inquiry about a critical fact that was easily ascertainable?

Federal Court (Full Court): Direction 65, which for the purpose of this decision was identical to Direction 79, required the Tribunal to take into account a number of considerations in deciding whether to refuse a visa under s 501 of the Migration Act 1958 (Cth). One such consideration was labelled the "expectations of the Australian community". Are those expectations pre-determined by the direction itself as deemed expectations? What is the content of those expectations?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court (Full Court). In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, was it necessary for the judicial review applicant to show that any errors were jurisdictional? In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, is there a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional?

Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?

Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court. Was cl 14.2(1)(b) of Direction 79 concerned with the effect of non-revocation, as opposed to revocation, of the cancellation of the non-citizen’s visa? Do cll 14.2 or cl 14.4(1) permit consideration only of the negative impacts on family members of removal of the non-citizen from Australia?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?

Supreme Court of New South Wales. Is the question of whether, in applying a legislative power or discretion that does not infringe on the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law? If not, does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?