Case Law Updates

Federal Court: Applicant applied to FCCA for judicial review of IAA's decision and for extension of time within which to file that judicial review application. FCCA found that: extension should not be granted "on the ground of inadequate explanation alone"; there was no merit in the judicial review application. As FCCA's decision to refuse to grant time extension was not appealable, Applicant applied to FCA for judicial review that decision and had to show FCCA made a jurisdictional error. FCA held that FCCA erred in holding that judicial review application lacked merit. Was that error jurisdictional? Does the materiality test apply to the determination of whether a court made a jurisdictional error?

Federal Court. Does family violence include belittling, intimidating, frightening, or similar conduct directed to the person claiming to be the victim of domestic violence? Can it be said that, instead of being obliged to accept the evidence that was before her, the independent expert was required to make her own, independent assessment as to whether or not the appellant was a victim of relevant family violence?

Federal Court. In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Is the correct approach to consider the proposed ground of appeal at a reasonably impressionistic level?

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"?

Federal Court (Full Court). The power under s 501CA(4) of the Migration Act 1958 (Cth) can be exercised in the circumstances described in s 501CA(1), which provides as follows: "This section applies if the Minister makes a decision ... under subsection 501(3A)" (emphasis added). If a visa is cancelled under s 501(3A) by a delegate, does that mean that a decision cannot be made under s 501CA(4)?

The consequences of not keeping a backup of electronic files could be devastating. In this decision, the AAT affirmed an OMARA decision and found as follows: "it is clearly not acceptable practice for any migration agent to keep files and records in such a manner as to put them at risk of being totally lost or rendered inaccessible as a result of a single, simple laptop failure. It is negligent in the extreme not to have backup arrangements in place".

Federal Court. Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational? Can delay be justified on the basis of lack of resources?

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?