Case Law Updates

Federal Court. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court. Are administrative decision-makers "bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented"?

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?

Federal Court. Secretary gave IAA prejudicial material that was irrelevant to the criteria in question. High Court (HCA) had held that a fair-minded lay observer might have apprehended that the IAA might have made a decision otherwise that on the proper merits of the case and remitted the matter to the IAA for reconsideration according to law. The Secretary then provided the HCA's decision to the IAA, differently constituted. As the HCA's decision contained a summary of the prejudicial material, did the giving of that decision to the second IAA give rise to apprehended bias?

Federal Court: s 36(3) of Migration Act 1958 provides that Australia is taken not to have protection obligations if non-citizen "has not taken" all possible steps to enter & reside in any other country apart from Australia and the country where they fear persecution. AAT found that Indian Appellant had well-founded fear of persecution in India, but not Nepal. Appellant argued to AAT that, at the TOD of, he could only enter Nepal through India. Was AAT required to consider whether Appellant could or would prospectively: voluntarily return to Nepal; be removed from Australia to India? Or was AAT required to focus instead only on whether, by the TOD, Appellant had taken all possible steps to enter & reside in Nepal?

Federal Court: In a landmark decision which we recently summarised, the Federal Court held that s 501 of the Migration Act 1958 (Cth) did not apply to the refusal of protection visas. But can protection visas be cancelled under s 501? Is a subclass 851 (resolution of status - RoS) visa a protection visa?

Federal Court. The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act? Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?

Federal Court. As the Appellant's detention was unlawful because of NZYQ, was it legally unreasonable or irrational to assess the benefit to the community on the basis of a detention which was unlawful?

Federal Court: 'I do not think that [deciding to cancel a visa under s 501(3) rather than s 501(2)] is a “decision” which is subject to judicial review'

Federal Court (Full Court). Is "the violation of international law ... intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation" under s 501A(2)? If not, does this answer "create any relevant incongruity with a finding that a failure to consider those obligations in a particular case ... means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense"? Does the Minister have a discretion under s 501A(2)?