Case Law Updates

Federal Court. The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act? Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?

Federal Court (Full Court). Were the best interests of the children under Direction 90 to be viewed through the prism of what the appellant would do if the visa was refused? Does the fact that the Tribunal was aware that the interests of the relevant minor children differed and the extent to which they did and that the appellant did not put that difference in issue before the Tribunal mean that the Tribunal engaged in the required weighing exercise?

High Court. "Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law", is it open to the decision-maker to "defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa"?

Federal Court (Full Court). Is it "permissible for the Court to speculate as to how the Tribunal might have reasoned or what conclusions it might have reached if it had not made the error in question"?

Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?

Federal Circuit Court: 'The Minister argued that the consequence of that was that the Tribunal did not need to refer to every factor mentioned in Direction No. 53. However, that is not what is meant by saying that the Direction is not a checklist'

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court (Full Court). If a party applies for judicial review of a decision of the AAT but does not join the AAT as a party to the proceedings, is that necessarily fatal to those proceedings? Does the bare fact that a non-citizen is self-represented at the Tribunal and in immigration detention during the AAT hearing amount to a denial of procedural fairness?

Federal Court (FCA). Can a court grant mandamus by way of interlocutory relief? Does the FCA have jurisdiction or power to grant mandamus compelling...