Case Law Updates

Federal Court (Full Court). Could a conclusion that a non-citizen posed a risk of reoffending similar to other ordinary Australian residents rationally support a conclusion that the risk was unacceptable? Can it be said that "a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending"?

Federal Court: Cl 8(4) of Direction 65 provided: "Primary considerations should generally be given greater weight than the other considerations". AAT quoted that clause but eventually noted "the requirement that primary considerations should be given greater weight than the other considerations". Did AAT misinterpret cl 8(4)? Did AAT misinterpret cl 14.2(1)(a) by saying it was required to place less weight on how long the Applicant had resided in Australia "because of the limited positive contribution to the Australian community"? If so, was that error material? Is materiality a binary or balancing test? Despite Applicant's clearly articulated claim regarding the impact non-revocation would have on his family, pursuant to cl 14.2(1)(b), AAT made no finding in that regard. Should FCA infer from AAT's recitation of 14.2(1)(b) that it considered that claim? Did AAT misinterpret DHA's warning letter to Applicant?

Federal Court. Can it be said that "engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight"?

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

High Court. Can it be said that s 494AB of the Migration Act 1958 (Cth) does not take away the jurisdiction of any court to hear and determine proceedings of the kinds described in s 494AB(1), but rather provides the Commonwealth with a defence to those claims if they are made in a court other than the High Court? If so, could proceedings instituted in the High Court in relation to the matters identified in s 494AB(1) be remitted to another court for hearing and determination without s 494AB providing an answer or defence to the claim?

Federal Court: The AAT received 2 non-disclosure certificates under s 375A, but only disclosed the existence of the first. The second certificate referred to the MRT, although the MRT had already amalgamated into the AAT. The appellant argue, among other things, that had he known about the existence of the second certificate, he could have argued: that it was invalid as it referred to the abolished MRT; that even if it were valid, he could have argued for a favourable discretion to disclose the content covered by it. Does a discretion really exist?

Federal Court (Full Court). Can it be said in the context of s 501CA(4) that "there is no foundation for the submission that [the administrative decision-maker] erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made"?

Federal Court. Does the Federal Court have jurisdiction to review decisions made under s 198(6) of the Migration Act 1958 (Cth)?

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), can it be said that, in "taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration"?

Federal Court (Full Court). In order to comply with s 494D of the Migration Act 1958 (Cth), does Form 956 need to state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned? Did Form 956 authorise an agent to receive communications from the Department about the revocation of visa cancellation, even though it only indicated that assistance was provided with an "application process"?