Case Law Updates

High Court. Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?

Federal Court. In exercising his power under s 501BA, are the Tribunal’s reasons for decision always a mandatory consideration? Was it legally unreasonable for the Minister to find that the applicant's risk of recidivism was dependent on whether he would have access to mental health treatment, which in turn depended on whether he would be eligible for NDIS treatment, and yet ignore that a decision under s 501BA would render the applicant a non-permanent resident and thus ineligible for NDIS treatment?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?

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. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court (Full Court): visa cancellation notification taken to have been received under reg 2.55(8), whether or not actually received; AAT had no discretion to accept late application under the Migration and Refugee Division

High Court. Is a non-disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) "new information" within the meaning of s 473DC? If so and the IAA treats a certificate as valid and exercises the power conferred by s 473GB(3)(a) to have regard to the information protected by the certificate, can the IAA be taken to have considered that the certificate itself "may be relevant" within the meaning of s 473DC(1)(b)?

Federal Court: In DOB18, Minister had said that DOB18 "would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa". In DOB18, FCAFC held that: Minister did not mean that such an application would necessarily be considered by a delegate, as a matter of law; on judicial review, DOB18 had to "establish that it was likely: (1) that the Minister would make the decision personally; and (2) that she or he would not consider whether the criteria in s 36(2)(a) and (aa) were met before considering any other criteria". Here, Assistant Minister (AM) made two non-revocation decisions. Can it be inferred from the fact that AM personally made two decisions that it was "likely that he or another duly authorised Minister would decide any protection visa application by the applicant"?

Federal Court: Parties to a court dispute cannot litigate the same issues more than once, although appeals are not considered re-litigation. There are exceptions to the rule against re-litigation: res judicata, issue estoppel and Anshun estoppel, which are "subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes"; abuse of process by re-litigation; untenable claims; and judgement obtained by fraud.

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?