Case Law Updates

Federal Court. Non-citizen won a judicial review application at FCCA and was awarded legal costs. As non-citizen was represented on a pro-bono basis (no win no fee), those costs would effectively be paid to his lawyers. However, Minister appealed FCCA's decision to FCA and applied for a stay order relating to that costs order. Should the court infer, based on the fact that the non-citizen was represented on a pro-bono basis and some other factors, that he would not have the money to pay the Minister's legal costs if the Minister is ultimately successful on appeal, in the absence of direct evidence regarding the non-citizen's financial position? If so, should that inference justify the grant of a stay order?

Federal Court. Ground 2 of the judicial review application was that, in cancelling Applicant's visa, Minister failed to have proper regard to the legal consequences of that decision, the prospect of indefinite detention and the impact on Applicant's mental health. Even if the Minister were required to respond to the interrogatory in a way that supports the submission that, contrary to s 197C of the Act, no person has ever been refouled to Iraq, would that evidence be admissible? Can the collective knowledge of the Department be imputed to the Minister personally?

Federal Court: Parties to a court dispute cannot litigate the same issues more than once, although appeals are not considered re-litigation. There are exceptions to the rule against re-litigation: res judicata, issue estoppel and Anshun estoppel, which are "subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes"; abuse of process by re-litigation; untenable claims; and judgement obtained by fraud.

Federal Court. On 24 June 2020, FCA ordered Home Affairs Minister to decide a protection visa application by 3 July 2020 at noon. On 1 July 2020, Minister's lawyers sent an email saying that Minister was not available to personally make the decision within the timeframe and asking for variation of the order so that any other portfolio Minister could make the decision. On 2 July 2020, FCA accepted that request and ordered Home Affairs Minister to either personally make the decision or ensure it will be made by another portfolio Minister or a delegate by 3 July 2020 at noon. Applicant sought orders directing the institution of contempt proceedings in the event of non-compliance with the latest orders. If those orders are not complied with, could any explanation for non-compliance require an affidavit by the Minister personally and for the Minister to make himself available for cross-examination in contempt proceedings?

High Court. Is the effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt? Did s 36D(1) of the Australian Citizenship Act 2007 (Cth) purport to vest such a power to impose additional or further punishment in the Minister? If so, is s 36D invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

High Court. Is the power in s 198AHB of the Migration Act 1958 (Cth) conditioned on a requirement to afford the affected person procedural fairness? Does the question of whether to remove a non-citizen is reasonably practicable encompass "an assessment of what will or might be expected to happen to the non-citizen once received into the country to which the non-citizen is removed"? Do ss 198AHB, 76AAA and 198(2B) contravene Ch III of the Constitution in their application to the appellant?

Federal Court. Can it be said that the obligation under s 360 of the Migration Act 1958 (Cth) to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened? Are issues which emerge during a hearing also subject to the obligation imposed by s 360?

Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?

Federal Court: Ministerial Direction No 65, now replaced by Direction No 79, provided as follows: "Where the [DFAT] has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making that decision". Are decision makers obliged to consider DFAT reports when making decisions to which Direction No 65 applies?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?