Case Law Updates

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court. Was the Tribunal allowed to 'net off’ or offset against one another the various factors that it took into account when considering under cl 14.5 of Direction 79 the extent of impediments that the Applicant may face if removed from Australia?

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): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

High Court. Can it be said that "a decision maker, in whom is reposed a very general statutory power or discretion, can reduce the standard of procedural fairness to "nothingness" simply by deciding that the interests of those affected are irrelevant"?

Federal Court. Is the question in para 8.3(4)(a)(i) of Direction 99 whether the person was successful in respect of issues such as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia? Did para 8.5(2)(a)-(f) exhaustively identify the relevant categories of conduct?

Federal Court: when considering whether a position is genuine as part of a nomination application under r 2.72, is Minister obliged to consider the tasks of ANZSCO unit group? If not, is Minister at least allowed to consider those tasks? If Tribunal refuses to grant visa on the basis of its refusal to approve nomination and the nominator wins on judicial review so that nomination is remitted back to the Tribunal, should the Court dismiss the visa applicant's judicial review application as the visa applicant still did not have an approved nomination?

Federal Court (Full Court). In re-exercising the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?