Case Law Updates

Federal Court (Full Court). Was the appellant Minister, who elected to make a personal decision under s 501CA(4) of the Migration Act 1958 (Cth), required to personally consider the respondent's representations? Or could he merely rely on a Departmental summary of such representations? If he could not rely on a summary, did he consider those representations? Which party bore the onus, on appeal, on the question of whether the Minister considered those representations?

High Court. In hearing an interlocutory appeal concerning the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), was the Court of Appeal required to apply the principles in House v The King applicable to the review of discretionary decisions or the "correctness" standard? 

Federal Court. Can it be said that "the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence"? In Makasa, HCA held that power to cancel visa under s 501(2) was spent by AAT's decision to set aside delegate's original decision. Does Makasa apply to s 501CA(4)? Can the same sentence of imprisonment lead to satisfaction of both ss 501(3A)(a) and (b)?

High Court (single Justice). Does the common law, once determined, operate both prospectively and retrospectively? In other words, if an administrative decision-maker decides a case based on the law as then understood, but that understanding then changes, does the new understanding apply ab initio?

Federal Court. Can it be said that "the AAT’s exercise of discretion under s359C of the Migration Act 1958 (Cth) miscarried and through the failure to exercise the discretion properly the AAT failed to conduct a proper review under Part V of that Act"? Can it be said that the "AAT was unreasonable and/or that the AAT failed to conduct a proper review under Part V of the Migration Act"?

Federal Court: May ss 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth) overlap? Further, IAA refused to consider new info, saying: "The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection". Did IAA, in effect, say that "in no circumstances could evidence" relating to the siblings "have probative value when assessing the applicant’s claims for protection", thus amounting to jurisdictional error?

Federal Court. Should Thornton and Lesianawai be extended to s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Did the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer render his offending as irrelevant to the Tribunal's inquiry as to the protection of the Australian community under para 8.1.1(1) of Direction 99?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

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: 'It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else'