Case Law Updates

Federal Court: although legal unreasonableness is not amenable to fixed formulae, this decision contains an interesting description: 'A conclusion, whether stated definitively or arising as a matter of generalisation ... , that is inherently inconsistent with another conclusion (in the sense that at least one of them must be wrong) is one that is attended by irrationality or illogicality of the extreme kind to which the authorities refer'.

Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material? 

High Court: Did availability of alternative avenue of judicial review to FCA preclude application to HCA? Applications to FCCA under s 476(1) must be made within 35 days of migration decision (s 477(1)), unless extension is granted (s 477(2)). Does s 477(1) limit the scope of jurisdiction conferred on FCCA by s 476(1)? Or does it merely limit the exercise of that jurisdiction? Did HCA adopt FCFAC's decision in MZABP? In assessing time extension application, was FCCA's "inference about a self-represented litigant's state of understanding of court procedure ... available to be drawn based solely upon the fact that [Plaintiff] has previously brought proceedings in that court"?

Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?

Federal Court. Cl 13.1.2(1)(b) of Direction 79 provided that, for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively ... The likelihood of the non-citizen engaging in further criminal or other serious conduct"? Is there a "material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend"?

Federal Court. Was the Minister's decision under s 501BA of the Migration Act 1958 (Cth) "legally unreasonable in that he failed to consider (or deferred consideration of) the applicant’s protection claims, despite the applicant being unable to make a protection application by reason of being barred by operation of s 48A of the Act"?

Federal Court. If AAT receives and accepts medical evidence to the effect that a person is mentally unfit to attend a hearing but that person attends the hearing anyway, can AAT make adverse credibility findings based on oral submissions without meaningfully appreciating that that person's medical condition might have affected those submissions? Further, can it be legally unreasonable to refuse to allow a representative to appear and participate at a Tribunal hearing related to a Part 7-reviewable decision? We summarise the answer to those and many other questions.

Federal Court (Full Court): s 473DD provides that IAA must not consider new information unless certain preconditions are satisfied. But does that provision expressly or impliedly empower IAA to consider new information? Can it be said that "the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the [IAA] in deciding whether 'exceptional circumstances' exist", pursuant to s 473DD(a)? What factors is IAA "required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD"? Can the "matters concerning the substance or merits of the new information" sometimes be relevant for the purposes of s 473DD(a)? Is IAA "required to take into account or have regard to the matters advanced by the applicant as establishing either" ss 473DD(b)(i) or (ii)?

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court (Full Court). Can it be said that "s 501G(1) when read with reg 5.02, does not state that the document must be given by a method prescribed for the purpose of giving documents to a person in immigration detention, and the Minister may, by operation of s 494A(1), give the document to a person by any method that he or she considers appropriate"?