Case Law Updates

Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material? 

Federal Court. Is the fact that an applicant is self-represented before the Tribunal a relevant circumstance which impacts the question of the fairness of the procedure adopted by the Tribunal?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Court. The Applicant, an unauthorised maritime arrival, made a request for Ministerial intervention under s 46A(2) of the Migration Act 1958 (Cth). Before determining that request, the Applicant was told that he would be removed from Australia. In an application for interlocutory injunction to restrain his removal, did the balance of convenience favour the respondents because removal would frustrate the duty under s 198?

Federal Court. AAT set refusal aside, finding Applicant met s 36(2)(aa). On remittal, in considering exercise of discretion under s 501(1), Minister "accepted" AAT had found s 36(2)(aa) was satisfied and "noted" Applicant's submission to Minister relating non-refoulement obligations. Can it be said that Minister's acceptance that the AAT had found that s 36(2)(aa) was met should not be viewed as acceptance by him of substratum of AAT's finding? Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to discharge his discretion? For the purposes of discretion under s 501(1), is Minister entitled to disagree with or adopt AAT's findings?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

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 (Full Court). Can the Court set the amount of costs in migration litigation at a level that exceeds or is less than the scale in Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules)? If so, does the legislative scheme impose on an applicant for costs any burden to prove that departure from the scale of costs in Schedule 2 to the GFL Rules is justified or warranted? Can a successful judicial review applicant recover the filing fee, in addition to costs incurred with professional fees?

Federal Court (Full Court). Does it follow from the failure to reference certiorari in s 39B of the Judiciary Act, that [the Federal Court] lacks jurisdiction to grant relief of that character, the effect of which is to quash an impugned decision"? Can it be said that the Federal Court "has jurisdiction (not by way of an appeal regularly brought) to review decisions made by its judges"?