Case Law Updates

Federal Court: As discussed in a previous article, a judge of the FCA had echoed the writer's concerns about the fact that, sometimes, the Minister inadvertently labels merits review as materiality test considerations. With respect, those concerns have just been echoed by another judge of the FCA.

Federal Court. The grounds of appeal formulated by the self-represented appellant "do not appropriately articulate any appellable error by the primary judge. On their face, they simply ask this Court to detect jurisdictional error in the Tribunal’s decision". Would it be wholly inappropriate to read those grounds of appeal "as asserting that the learned primary judge erred by failing to detect the jurisdictional errors identified in grounds one and two"?

High Court. Can it be said that, while "the broad principle is that the Courts ... must ... administer justice in public", the exceptions to this broad principle are "themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done"?

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

Federal Court. Did the Tribunal err in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”? Did para 8.3(2) of Direction 110 direct attention to the impact on the non-citizen of the loss of any other ties to the Australian community?

Federal Circuit and Family Court. The Tribunal refused to release information under s 362A of the Migration Act 1958 (Cth), finding that disclosure was not permitted under the Australian Privacy Principle 6. Did the Tribunal make an error, in that the primary purpose of collecting such information was the same for which the delegate and Tribunal would have disclosed it, namely to assess whether the applicant was the sponsor's spouse?

Federal Court (Full Court): 'it will not always be illogical or irrational to place “some weight” on anonymous information'

Federal Court: Minister found Appellant satisfied s 36 and assessed whether he should refuse protection visa under s 501 by considering consequences of decision, finding that: if granted, potential harm to AU community was "so great that any likelihood that [such harm] would occur represents" unacceptable risk; if refused, Appellant would remain in indefinite detention while Minister considered exercising discretion to grant another visa. As a result, Minister reasoned he did not need to consider consequences of removal, such as persecution. Was that reasoning flawed? Further, can it be said that: "s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa"; PIC 4001 is inconsistent with ss 36(1C) or 501?

Federal Court: FCA had held that: the factors in Direction 53 for assessing whether a person is a Genuine Temporary Entrant (GTE) were not mandatory considerations; decision makers were only required to consider whether to weigh up those factors; evidence going to a particular factor might be "shown to be so significant or compelling that it might be inferred that the Tribunal's failure to refer to that evidence manifested a failure to [consider whether to weigh up that factor]". Do the same principles apply to Direction 69? We explain how practitioners can use this decision to maximise the prospects of satisfying the GTE criterion. Further, FCA answered whether it was likely that Appellants' RMA had told them "they did not need a lawyer" at FCCA.

Federal Court. Is one reason why there may be no real prospect of removal becoming practicable that the Migration Act 1958 (Cth) itself imposes a statutory preclusion on the removal of the applicant? If so, did s 198(11) have the effect that removal of the applicant was only permitted to a regional processing country?