Case Law Updates

Federal Court. Is the so-called implied undertaking (also known as “Harman undertaking”) to the effect that "a party who seeks discovery of documents obtains it on condition that the party will make use of those documents only for the purpose of that action, and for no other purpose"? If so, does the answer suggest that the undertaking only applies to documents obtained under compulsion, as opposed to documents voluntarily provided?

Federal Court: The Full Court had decided in Ibrahim that the Minister had conflated Australia's non-refoulment obligations under international law with the protection obligations under the Migration Act 1958 (Cth). The Minister sought to distinguish Ibrahim on the basis that, here, he had accepted the findings made by an ITOA regarding non-refoulment obligations and had considered the Appellant's claim of harm "outside of the concept of non-refoulement", thus suggesting that there had been no conflation.

Federal Court. If a decision-maker first states its conclusion and then talks about the evidence concerning that conclusion, does that indicate the decision-maker made the conclusion without considering that evidence? Does s 416 require AAT to refuse to consider the information that was before a previous AAT, or to have regard to the previous AAT's decision, or to take it to be correct? Can AAT adopt or accept the conclusion or the process of reasoning of a previous AAT in whole or in part?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

High Court (single Justice). Do the words 'benefits the Australian economy' in cl 132.227(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) imply a significant benefit?

Federal Court. In determining whether to grant an interlocutory injunction to prevent the Applicant's removal, is it sufficient that the underlying judicial review proceeding challenge only the discharge of the obligation under s 66, without directly challenging the exercise of the power under s 198 of the Migration Act 1958 (Cth)? Does the FCA have jurisdiction to declare a notification as non-compliant with s 66 of the Act?

Federal Court (Full Court). Generally speaking, if a protection visa is refused, the IAA (not the AAT) has jurisdiction to review the refusal if the applicant "is" an Unauthorised Maritime Arrival (UMA). Can a person cease to be a UMA upon the grant of a visa? Does the the judgement of the plurality of the High Court in AUS17 setting out the sequence in which the IAA should approach the tasks of assessing new information for the purposes of s 473DD provide a mere guidance?

Federal Court. Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred? Can it be said that, under s 501(3) of the Migration Act 1958 (Cth), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test?

Federal Court. In Thornton, the High Court held that, as the non-citizen's finding of guilt in Queensland was made without recording of a conviction, his offending as a minor was an irrelevant consideration under s 501CA(4) of the Migration Act 1958 (Cth). Should Thornton be extended to Victorian offences?

Federal Court. Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention? Can it be said that, although any potential harm to the applicant if he is removed is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?