Case Law Updates

Federal Court (Full Court). Can it be said that, "absent prior notice here that the weight that the Tribunal might attach to its consideration of the best interests of affected children would be less than the weight that it might attach to its consideration of a different matter or circumstance, procedural fairness would be denied"?

Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

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 (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?

High Court. Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?

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. Given the 25-month gap since the Tribunal’s decision, was it "illogical or irrational for the Minister to assume that certain facts at the date of the Tribunal’s hearing remained the same, or that the lack of evidence on certain matters at the date of the Tribunal’s decision meant that there continued to be a lack of evidence at the date of his decision"?

Federal Court. In the context of s 501CA(4), was the AAT bound by the sentencing remarks of the District Court? Does the decision of the Full Court in WKMZ remain authoritative despite the High Court decision in AJL20?