Case Law Updates

Federal Court (Full Court). One of the judges of the Full Court had appeared as the Commonwealth Director of Public Prosecutions in a conviction appeal on a point of law involving the non-citizen in question. The non-citizen's representative applied for that judge to recuse himself from hearing the appeal from an FCA decision dismissing a judicial review application.

Federal Court. The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act? Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?

Federal Court (Full Court). The Minister found that the Appellant failed to recognise that he had "psychological sexual issues relating to children". Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"? If so, was the adjective "psychological" used by the Minister in its unscientific sense?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...

Federal Court: The Appellant provided the Immigration Assessment Authority (IAA) with untranslated documents. Was the IAA required to obtain a translation of those documents?

Federal Court. If the Minister relies on an Adverse Security Assessment (ASA) rather than independently assessing the risk posed by a person, does this amount to dictation? Can the Minister consider non-refoulement obligations as part of the residual discretion under s 501(2)-(3)? Is a decision under s 501(3) or 501C(4) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid? In assessing whether s 501C(4)(b) is met, is the Minister limited to considering the same sub-sections of s 501(6) which founded cancellation under s 501(3)?

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Agent had been suspended for 3 months and until certain conditions were met. As MARA received no communication from the Agent, the suspension continued to be in effect. MARA then commenced an investigation and found that: Agent had "disengaged from the migration advice profession"; his "prolonged failure to engage with [MARA] and endeavour to comply with the conditions imposed on his suspension appears to demonstrate a blatant disregard for [MARA], the migration advice regulatory scheme, and his former clients".

Federal Court. Does the principle according to which a failure on the part of an administrative decision-maker to make an obvious inquiry can be a ground of judicial review apply both s 5(2)(g) of the ADJR Act and an analogous jurisdictional error? What are the circumstances in which a court can receive evidence on judicial review? In public law, is the jurisdictional error ground of "fraud" confined to that of the decision-maker, a party, or a party’s representative?