Case Law Updates

Federal Court (Full Court). In determining whether a "claim" estoppel arises, can different grounds of jurisdictional error be seen as separate causes of action or claims arising out of the one decision? In determining whether Anshun estoppel arises, is the principal inquiry "whether the ground of review should have been brought forward in the first proceeding, in the sense that it was unreasonable for the appellant not to have done so"?

Federal Court (Full Court). Is the word “should” in para 8.4(4) indicative of a requirement that must be followed (i.e. that is mandatory)? Is it doubtful that the Tribunal can permissibly have independent regard to community expectations as assessed by it, given the Direction’s express provisions with regard to that subject which can be expected to cover the field?

Federal Court (Full Court). Is the change of legal representation on appeal usually sufficient to justify the grant of leave to rely on ground of judicial review not relied on at first instance?

Federal Court: In NBMZ, FCAFC held: Minister had to consider legal consequences of s 501 cancellation;  lack of reference to them led to inference they were ignored. In Taulahi, FCAFC held: NBMZ was about direct & immediate consequences (whether or not obvious) and applied to any statutory power. Did Cotterill broaden the principle in NBMZ & Taulahi to include the "real possibilities" of what might flow from a decision? Do those cases  apply to s 501CA? If so, was Minister required to consider mere possibility that Applicant was stateless and thus subject to indefinite detention? Should we infer Minister knew the way Act operates as he acknowledged Applicant could apply for protection visa and issued Direction 65, which contemplated indefinite detention?

Federal Court. If DHA identifies an AAT decision, prepares a brief to the Minister consisting of a decision record setting aside the Tribunal's decision under s 501A(2) and an invitation to circle an option indicating that he adopts that decision record as his own or to circle an option indicating that he does not set aside the Tribunal's decision, and the Minister circles the former, is this sufficient evidence to warrant orders that the Minister answer an interrogatory aimed at determining whether the Minister turned his mind to the decision? Was the interrogatory a fishing expedition?

Federal Court (Full Court). Does item 4 of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) involve a usurpation of judicial power? Does item 4 have the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution? Do items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?

Federal Court. Is a valid decision under s 501(3A) a precondition to the exercise of AAT's powers under s 501CA(4)? For the purpose of 501CA(4)(b), is AAT "confined to the narrow version of the character test in s 501(3A)(a)"? Does FCA have original jurisdiction to review a decision made under s 501(3A)? If not, does it have accrued or associated jurisdiction to review a decision made under s 501(3A) where it has original jurisdiction to review a decision made under s 501CA(4)? Is AAT allowed to take into account cl 9.4.1 of Direction 90 when considering the weight to be given to the expectations of the Australian community?

OMARA: "As a member of the migration advice profession, the Agent is expected to act with fairness, honesty and courtesy when dealing with other [RMAs]. This includes efficient and effective communication with other agents with respect to the transfer of client information to the new agent when the original agent’s appointment is terminated... [T]he Agent had made a written undertaking to another migration agent to provide relevant documents, and had failed to do so, in breach of clause 4.6 of the Code".