Case Law Updates

Federal Court. The Appellant sent the Tribunal an email which stated that a document was attached. However, he forgot to attach the document. Was the Tribunal required to inquire about the missing document on the basis that it would be an obvious inquiry about a critical fact that was easily ascertainable?

Federal Court. Is the Tribunal required under Direction 99 to "consider whether the decision is in the best interests of a particular child if the facts known to the Tribunal are such as to raise a realistic question as to whether the decision will affect that child"?

The complementary protection under s 36(2) of the Migration Act 1958 was not engaged, as loss of life as a result of losing access to medical treatment was insufficient to support the conclusion that the appellant would be 'arbitrarily' deprived of his life. However, that provision does not require an actual subjective intent to deprive an applicant of their life

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"?

High Court. Does an order for costs in favour of an unincorporated law firm entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?

Federal Court. Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)? Is a finding that a non-citizen is of good character for the purposes of the Citizenship Act entirely irrelevant to the question whether his/her visa should be cancelled as a result of failing the character test in the Migration Act?

Federal Court. Is an application to set aside a notice of discontinuance filed in the Circuit Court interlocutory in nature, with the result that leave is required to appeal against the discontinuance? If so, will leave "only be granted where the decision below is both attended with sufficient doubt to warrant it being considered by a Full Court, and would result in substantial injustice if leave were refused, supposing the decision to be wrong"?

Federal Court: DHA refused nomination and 457 visa. Both sponsor and visa applicant (VA) applied to AAT, which remitted visa application to DHA. Due to DHA's delay, nomination expired & sponsor lost SBS status. Appellant found another employer, who lodged a nomination application, but DHA refused the visa as there was no approved nomination. VA was not entitled to merits review under the old version of s 338(2)(d)(i) because of DHA's further delay, with the result that, at the time of AAT application, no nomination was approved nor under review. Is there a remedy when VAs are blameless?