Case Law Updates

Federal Court. May there "be overlap between a failure to afford an opportunity to be heard, and a reasonable apprehension of bias on the ground of pre-judgment, because the former may give rise to the latter"?

Federal Court. Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?

Federal Court. Where the Minister by his or her conduct invites further submissions for the purpose of exercising the personal power in s 501BA(2) of the Migration Act 1958 (Cth), is the Minister thereafter compelled to consider that material, even though s 501BA(3) provides that the rules of natural justice do not apply to s 501BA(2)?

Federal Court (Full Court). Did s 33(1) of the Acts Interpretation Act 1901 (Cth) apply to s 501CA of the Migration Act 1958 (Cth), with the result that the Minister had the power, after having issued an invitation under s 501CA(3)(b), to issue another invitation that was effective for the purposes of s 501CA(4)?

High Court. Is the Minister required under ss 54(1), (2)(c), 55(1) or 56(1) to consider relevant information given or gotten at an interview? Is "compliance by the Secretary of the Department with the consequent procedural duty to give to the Authority specified categories of "review material" [under 473CB] affected by errors in the translation of words spoken during the protection interview"? Can IAA make a jurisdictional error if it relies on misinterpretation and does not invite applicant to an interview or does not exercise its powers to get and consider new information which might address the misinterpretation?

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

Federal Court. The Minister purported to cancel tje Appellant's visa under s 501(2), but that decision was quashed in court. The Minister then purported to cancel the Appellant's visa under s 501(3), but that decision was also quashed in court. The Minister eventually cancelled the visa under s 501(3) 'again'. Is the power to cancel a visa under s 501(3) spent if the Minister previously exercised the power to cancel under s 501(2)?

Federal Court. Does the term "identity" in s 116(1AA) of the Migration Act 1958 (Cth) have a stable meaning, instead of "ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history"? The appellant's half-brother's visa would be automatically cancelled under s 140(1) if the appellant's visa was cancelled. Was there a denial of procedural fairness to the appellant, as he could have submitted a statement from his half-brother or asked the Tribunal to call him?

Federal Court. Is what the High Court said in SZSSJ also applicable to s 351 of the Migration Act 1958 (Cth)? Can the Minister lay down Ministerial intervention guidelines?

High Court. Is there common law presumptions in Australia that "the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances" and that a statute does not impose criminal liability on the Crown?