Case Law Updates

Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?

Federal Court (Full Court). In deciding whether it was in the national interest to grant a visa, was the Minister obliged to take into account the legal consequences of his decision, "particularly when those consequences have implications not only for an applicant but also for the nation"? Is there a "necessary inconsistency between being satisfied that the appellant is not a danger to Australia’s security for the purpose of s 36(1C) and not being satisfied that it is in the national interest to grant him a SHEV for the purpose of Sch 2 cl 790.277"?

Federal Court. A delegate refused to grant the Applicant a subclass 309 (partner) visa under s 501 of the Migration Act 1958 (Cth). Can it be said that the refusal is not a Part 5-reviewable decision, with the result that s 359AA did not apply to the review? If so, was the Tribunal nevertheless required to comply with the well-established common law principle of procedural fairness?

Federal Court. Might legal unreasonableness (in the sense that the result itself bespeaks error) be found on the basis that there is no plausible justification for the timing of a decision under s 501BA(2) of the Migration Act 1958 (Cth) that is otherwise within power?

Federal Court: the respondent pleaded guilty to recklessly causing injuries to his child, which led to the refusal of his visa application; the AAT accepted the respondent's argument that he had only pleaded guilty because he thought that his child would otherwise be taken away from him; the Minister applied for judicial review...

Federal Court. In the context of the assessment of a person's holding of a religious belief, or adherence to a particular religion for the purpose of the protection criteria, can it be said that "what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge"?

Federal Court (Full Court) extends the High Court's materiality test in Hossain: 'the requirement of materiality for there to be jurisdictional error applies to a court as much as it does to an administrative decision-maker'

High Court. Is the existence of a duty to afford procedural fairness a question of statutory interpretation? Is there a "strong" common law presumption, "generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness"?

Federal Court: In the context of s 501BA(2), FCAFC had held in Ibrahim that: Minister conflated non-refoulement with the protection obligations under Migration Act; error was material because the internal relocation principle, which formed part of the non-refoulement obligations, no longer formed part of the protection obligations under the Act. In DGI19: FCA held Ibrahim applied to s 501CA(4); but Minister argued it should be distinguished on the basis that DGI19 did not argue to Minister the difference between the non-refoulement obligations and the protection obligations under the Act for the purposes of the relocation principle; FCA did not distinguish Ibrahim, holding that it was "not incumbent on an applicant proleptically to deal with the possibility of relocation". Was Omar (first instance) wrongly decided?

Federal Court. Appellant's protection visa application was refused. At AAT, he claimed that, if returned to his home country, he would be homeless and destitute due to his financial predicament and would be detained as a result. Generally speaking, s 210 of the Migration Act 1958 (Cth) provides that a non-citizen is liable to pay the Commonwealth the costs of his/her removal or deportation. In determining whether Appellant would become homeless in his home country, should AAT have considered the effect of s 210, which would impose a further financial burden on him?