Case Law Updates

Federal Court. In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata or Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"? Was the Tribunal entitled to consider an ITOA and its conclusion for the purpose of s 501CA(4)? Was Tribunal required to be satisfied of Art 1C of the Convention?

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. Are orders made by a superior court infected by jurisdictional error valid until set aside? Are orders made by an inferior court infected by jurisdictional error valid until set aside?

Federal Circuit and Family Court. The AAT's reasons copied many passages from the reasons of the very decision under review. Did the AAT fail to turn its own independent mind to the consideration of the case? Did the lack of disclosure of its intended reliance on those passages amount to a denial of procedural fairness?

Federal Court. Does the "gravity of the obligation upon the [IAA] to make a determination about whether Australia’s protection obligations w[ere] engaged" inform the determination of whether the IAA's power under s 473DD was exercised legally reasonably? Was it "open to the [IAA] to have regard to the inherent implausibility of the new information when considered in light of other information already before it for the purpose of determining whether it constitutes “credible personal information”within the meaning of s 473DD(b)(ii)"?

High Court. Will there "generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration"? When a Tribunal "errs by denying a party a reasonable opportunity to present their case", does reasonable conjecture "require demonstration of how that party might have taken advantage of that lost opportunity"?

Federal Court (Full Court). Does legal professional privilege apply in the context of dealings with the Department or the Tribunal? If so, does the privilege apply only if the representative acts in his/her capacity as a lawyer? If so, is it relevant whether the representative identifies him/herself as a lawyer? Does the privilege apply if the representative is a non-lawyer RMA? Will the "Deregulation" legislation change the answer to any of those questions?

Federal Court (Full Court). Where the Tribunal affirms a decision or remits it to the original repository of the power, is it exercising a power under the Migration Act 1958 (Cth), with the result that its decision is exempt from the validation provisions of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act)? If so, is that decision nevertheless exempt from the validation provisions of the Amending Act, as the Tribunal “did something else” within the meaning of item 2 of Sch 1 of the Amending Act?

Federal Court (FCA). According to the FCA, the effect of cl 13.1.2(1) of Direction 79 was to oblige decision-makers "to have regard cumulatively to the nature of harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen doing so". Does cl 13.1.2(1) require decision makers to "engage in separate risk assessments for each kind of offending in which an applicant has historically engaged"?

Federal Court. Combined effect of ss 360(2)(c) and (3) is that an applicant is not entitled to appear before AAT if s 359 applies to the applicant. Subsection 359C(1) applies if a person is invited under s 359 to give information and does not do so within the deadline. Section 363A provides that AAT has no power to permit a person to do a thing if a provision states that the person is not entitled to do that thing, unless a provision "expressly provides otherwise". Does s 363 "expressly [provide] otherwise" by giving AAT the power to "take evidence on oath or affirmation" or to "summon a person to appear"?