Case Law Updates

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court (Full Court). Does the ratio decidendi of Teoh extend to relevant provisions of other international treaties, including Art 12(4) of the ICCPR? If so, is the concept of "legitimate expectation" discussed in Teoh subject to any contrary indication by the legislature or executive? If so, does the Migration Act 1958 (Cth) contain such a contrary indication by the legislative?

Federal Court (Full Court): the Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). The Appellant argued to the Full Court that a suspended sentence is not a sentence for the purposes of the definition of a "substantial criminal record" under s 501(7).

Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?

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. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

Federal Court. Does the language of 362B of the Migration Act 1958 (Cth) "confine the circumstances in which the [AAT's] power to dismiss [an application for review] may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued"? Does the AAT have power to conduct hearings via video-link?

Federal Court. In the context of s 116(1)(e)(ii), can it be said that submissions to the Tribunal, viewed as a whole, are a mandatory relevant consideration, but not every aspect of those submissions can be so described? If so, for the purpose of determining whether an aspect of those submissions is a mandatory relevant consideration, is the fundamental question the importance of that aspect to the exercise of the Tribunal’s function, which will depend on the nature of the material and the circumstances of the case?

Federal Court. Did the Federal Circuit and Family Court (FCC) deny the appellant Minister procedural fairness? Is the question of whether the FCC denied the Minister procedural fairness one of law? If so, is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?

Federal Court. Delegate's decision to refuse to grant Appellant a protection visa contained footnote references to documents that were not discussed in delegate's decision. Those documents were adverse to Appellant's claims. IAA, on review, discussed and relied on those documents. Appellant argued to the Federal Court that: "primary rule" under s 473DC was that the IAA conducts a review on the papers by reference to the material "before the Minister"; those documents were not before the Minister, as they were not discussed by delegate, but merely footnoted; thus, those documents were "new information" as defined under s 473BB, which meant that IAA was limited as to the circumstances in which it could consider them.