Case Law Updates

Federal Court. Rule in Browne v Dunn: "if you intend to impeach a witness you are bound, whilst he is in the [witness] box, to give him an opportunity of making any explanation which is open to him". Does that rule apply to Tribunal decisions? Further, according to the hearsay rule, out-of-court representations made by a person are not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representations, with exceptions. Does the hearsay rule apply to Tribunal decisions? We summarise the answer to these and several other questions.

Federal Court (Full Court): Appellant's licence was terminated, after which he applied to the (1st) AAT, which affirmed original decision after a hearing. FCCA remitted the matter to the (2nd) AAT, which also carried out a hearing. 2nd AAT was reconstituted by another Member (3rd AAT) and then affirmed Board's decision. Was 3rd AAT required to afford the Appellant a further hearing? Could any findings by 1st AAT bind the 3rd? Was 3rd AAT allowed to consider 1st AAT's hearing transcript? Could AAT authoritatively determine the limits of its own authority?

Federal Court. Could a subsequent s 501(3A) cancellation decision rely on a conviction if that conviction was previously taken into account when deciding to revoke a mandatory cancellation?

Federal Court. Did the ability lawfully to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the cancellation of a visa "expire with the expiry of what would otherwise have been the duration of the term of the visa"? In other words, can it be said that the ability to revoke the cancellation did not exist, as revocation would merely restore an already expired ('stillborn') visa?

Federal Court. Can it be said that s 500(6J) of the Migration Act 1958 (Cth) "does not apply to information which is sought from the applicant by the Tribunal of its own initiative, and, instead, it applies only in respect of information provided by the applicant in support of his case in chief"?

Federal Court. Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect? Is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Under the Migration Act 1958 (Cth), a person served a written notice by the Department, requesting information that might help it ascertain the identity or whereabouts of another person, is obliged to provide that information. Non-compliance can result in imprisonment. Is an RMA obliged to provide clients' information? Does the answer depend on whether the RMA is a lawyer? If practitioners do not have the information sought, are they required to take steps to obtain it?

Federal Court. Was it impossible for the Applicant to demonstrate the testing of his rehabilitation in the community, as he had not been in the community, with the result that the finding about lack of testing in the community was illogical?

Federal Court. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?