Case Law Updates

Federal Court. If a party argues on appeal that they were denied procedural fairness in proceedings in the court below, is the question of whether the appeal is futile to be determined "from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review"?

Federal Court. Under s 196(4) of the Migration Act, if a person is detained as a result of a visa cancellation under provisions such as s 501, "the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen". Interpreting s 196(4) in isolation, a court would have no power to make a non-final (i.e. interlocutory) order for the release of a person to whom that provision applies. However, s 476A(2) provides that, where the FCA has jurisdiction in relation to a matter, that jurisdiction is the same as the High Court's. Does s 476A(2) give the FCA the power to make an interlocutory order for the release of a person to whom s 196(4) applies?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?

Federal Court. Are the factors in cl 8.1.1of Direction 90 "exhaustive in the sense of being a closed universe of considerations going to the question of the nature and seriousness of a non-citizen’s conduct"? Can it be said that a reference by an administrative decision-maker to "the balance of probabilities may sometimes properly inform some aspect of the process of reaching the correct or preferable decision, but that there are dangers in taking that approach as it may lead to error"? Is cl 9.4.1(2)(a)(i) only 'causally linked' to cl 9.4.1(2)(a), not to cl 9.4.1(2)(b)?

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

Federal Court. Can it be said that, "once the Minister or a delegate is satisfied that all of the criteria for the grant of a visa are met, she or he is under an immediate duty to grant the visa" and that "once the duty to grant the visa has arisen, any subsequent exercise of the power to refuse the visa under s 501 is invalid"? Is PIC 4001 invalid? Is a decision under s 501 ultimately made under s 65?

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?

Federal Court. Can it be said that, "in cases where unreasonable delay is relied upon as the basis for a writ of mandamus, the delay must have reached the critical point prior to the commencement of proceedings"?

High Court. Does responsibility for ensuring an absence of bias, whether actual or apprehended, ultimately lie with a court as an institution and not merely with a member of that court whose impartiality might be called into question? Was there a reasonable apprehension of bias in circumstances where one of the members of the Full Court of the Federal Court hearing a migration-related appeal had appeared for the Crown against the appellant in criminal proceedings?

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"?