Case Law Updates

Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?

Federal Court. Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision? Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"? Once significant delay is established, does the evidentiary onus shift to the Minister?

Federal Circuit and Family Court. The AAT's reasons copied many passages from the reasons of the very decision under review. Did the AAT fail to turn its own independent mind to the consideration of the case? Did the lack of disclosure of its intended reliance on those passages amount to a denial of procedural fairness?

Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court. When assessing under para 8.1.1 of Direction 99 the nature and seriousness of the Appellant's conduct to date, is the fact that he remained and worked unlawfully in Australia an irrelevant consideration?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

High Court. Can it be said that, "while [the respondent] may have been motivated to bring the current proceedings out of loyalty to [another person] or to avoid a possible forensic disadvantage to [that person], that does not mean that the proceedings were brought for an improper purpose"?

Federal Court. Can it be said that s 500(6H) of the Migration Act 1958 (Cth) "does not prevent an applicant who has not given two business days’ notice of proposed oral evidence prior to the commencement of the hearing, from relying upon that evidence as long as at least two business days’ notice is given prior to the resumption of the hearing following an adjournment"?

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?