Case Law Updates

Federal Court. Did the Federal Circuit and Family Court (FCC) deny the appellant Minister procedural fairness? Is the question of whether the FCC denied the Minister procedural fairness one of law? If so, is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?

Yet another matter remitted by the AAT to the Department based on DFQ17. In DFQ17, the Full Court of the Federal Court held that a "late" Tribunal application was actually not late as the Department's notification letter did not clearly convey the deadline for a valid Tribunal application.

Federal Court. If the Tribunal suggests that it will consider only a subset of the issues considered by the delegate but in reality also considers other issues considered by the delegate, is it under an obligation under s 360(1) to "invite the applicant to give evidence and present arguments relating to [those other] issues"?

Federal Court. Does the fact that the grant of an injunction would restrain the enforcement of the law by preventing officers of the Commonwealth from performing a statutory duty, and thereby frustrate the legislative scheme of the Migration Act 1958 (Cth), provide a strong reason not to grant an interlocutory injunction in the present case?

Federal Court: In assessing complementary protection claims, the existence of an element of intentionality in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" requires subjective intention, which is not the case where prison conditions are the result of a lack of resources in a receiving country: SZTAL. Applying SZTAL, FCA had held in AJI16 that "denial or unavailability of healthcare in a receiving country will only engage s 36(2A) where it is in some way personal to the person being returned". Does that mean that "the fact that a visa applicant has a serious health condition cannot be relevant to a claim for complementary protection"?

Federal Court. In HZCP, FCAFC had held: "The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself". Can decision-makers question and explore matters surrounding the fundamental facts of the conviction and sentence?

Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?

Federal Court. By stating that Direction 110 required some actions to be taken, did the Assistant Minister proceed on the basis that he was personally required to apply the Direction, thereby making a jurisdictional error?

Federal Court: AAT mistakenly added 1 week to the 84-day deadline for making a decision (s 500(6L)) and neither Applicant nor Minister noted it at directions hearing. Minister's advocate noted the mistake only after the actual deadline and before the mistaken deadline and notified Tribunal, which nevertheless proceeded to provide reasons for affirming the original decision. Did the AAT make a decision? Did the Federal Court have jurisdiction for a judicial review application? If so, what remedies were available?

Federal Court. In Mataia, FCA had decided that the principle in cl 6.3(5) of Direction No 79 is a not a mandatory relevant consideration. Does Mataia apply to cl 6.3(7)?