Case Law Updates

Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?

High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?

Federal Court (Full Court). Is it "permissible for the Court to speculate as to how the Tribunal might have reasoned or what conclusions it might have reached if it had not made the error in question"?

Federal Court. Was the Applicant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?

Federal Court (Full Court). Does it follow from the failure to reference certiorari in s 39B of the Judiciary Act, that [the Federal Court] lacks jurisdiction to grant relief of that character, the effect of which is to quash an impugned decision"? Can it be said that the Federal Court "has jurisdiction (not by way of an appeal regularly brought) to review decisions made by its judges"?

Federal Court. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

Federal Court. In light of the High Court decision in MZAPC, is it necessary for a court to consider materiality as a separate issue after finding that an administrative decision was legally unreasonable?

Federal Court. Could a mistranslation error leading to a finding that an applicant lacked credibility fall within the type of error referred to by the High Court in DVO16?

Federal Court (Full Court): Is the obiter dicta in MZZJO authority for the proposition that a decision-maker will necessarily make a jurisdictional error if, in assessing a protection visa application, he or she relies "solely or primarily on the absence of claims from an entry interview" whose purpose is not to assess the applicant's claim for protection?

Federal Court. Can it be said that the reference in para 8.3(1) of Direction 99 to "immediate family members in Australia" include children, although they need not be children? Is the question under cl 8.4(4)(d) "not concerned with relationships which may come into existence in the future but rather with those which presently exist"?