Case Law Updates

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court (Full Court): 'Where, as here, material is brought forward in an apparently genuine way that may lead to a reconsideration of an earlier determination as incorrect, it would be wrong to prevent the consideration of factual matters relevant to the making of the preferable decision by reference to' the principle of issue estoppel

Federal Court. Are the words "before the Minister" in s 473DC(1)(a) of the Migration Act 1958 (Cth) confined to information that was before the Minister in an applicant's application? Or is information "before the Minister" so long as a delegate has "actual awareness" of the information, whether or not it formed part of the application?

Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?

Federal Court (Full Court). Can it be said, based on a single judge FCA decision, that the "principles of legal unreasonableness, in the sense considered in Li, have no application in the review of a decision... as to the existence of certain facts that satisfy statutory criteria", but only to the review of a discretionary power? Summary of principles concerning review of: state of satisfaction under s 65 for illogicality and irrationality; adverse credibility findings. Can it be said that "the psychological reactions of a couple to their first sexual encounter are matters of common human experience"? Or do those reactions need to be supported by evidence such as psychological evidence? Can it be said that, "if two people give a different account of an event and the evidence of one is rejected, that does not provide a logical basis on which to reject the evidence of the other"?

Federal Court: "The High Court has warned against attaching particular significance to the [International Covenant on Civil and Political Rights - ICCPR] and its attendant jurisprudence in interpreting sections of the [Migration Act 1958 (Cth)] which incorporate ICCPR obligations". However, can decisions of international bodies interpreting Art 7 of the ICCPR "in the context of withheld or inadequate healthcare ... be of assistance in determining when an obligation might arise in the context of deportation"?

Federal Court. In order for documents or information to be "before the Minister" under s 473DC(1)(a), is it sufficient that they were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession? Does "the fact that on the day before the SHEV interview the delegate accessed [an electronic document] mean that the [document] was before him when the decision was made"? Does the reasoning in Plaintiff M174 concerning s 57 apply to s 473DE? Was Minister required to file notice of contention on materiality?

Federal Court: In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with Ibrahim. Can that division be resolved? Further, can errors which individually do not satisfy the materiality test do so if combined?

Federal Court. Can it be said that, "once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case"? Were the circumstances of this case, where the applicant was a self-represented litigant seeking habeas corpus, exceptional? Can it be said that "abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame"?

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?