Case Law Updates

Federal Court: Before appeal proceedings at FCA finalised, Callinan AC prepared a Report on the AAT, which included the following passage: "[the MRD Legal Services Section of the AAT has] prepared from time to time “templates” of determinations. I am told that at one stage, this section either volunteered to, or otherwise sought, and did in fact, “check” decisions by Members, on occasions requesting, if not almost insisting, upon changes beyond proofing changes". Appellants sought leave to issue a subpoena to MRD Legal Services Section to produce all documents exchanged with Member which could constitute legal advice. In support of leave application, Appellants' solicitor claimed Member's Linkedin profile revealed Member was legally qualified but "did not have a background in legal practice", thus supporting inference Member received legal advice. If Member received legal advice, did that vitiate AAT's decision?

Federal Court. If the Minister finds under s 501CA(4) that "the broader Australian community’s general expectations about non-citizens, as articulated in [Direction 90], apply in this case", but then, "without any explanation and before anything else ... immediately states that he “attributed this consideration significant weight against revocation of the cancellation of [the Applicant's] visa”", will he fail to intellectually engaged with the question of the weight to ascribe to those expectations?

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. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

Federal Court. Is it "appropriate to use the shell of an old action to commence fresh proceedings including against a new party when that proceeding has been resolved"? Were answers in the form of "I don't remember" to an interrogatory administered to the Minister improper?

Federal Court. In considering whether an applicant for visa subclass 309 (partner) was a de facto partner of the visa sponsor, was the Tribunal allowed to consider the best interests of the affected children or related issues or "any hardship that might be occasioned by refusal of the visa, be that to the visa applicant, the sponsor, or their children"?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?

Federal Court (Full Court). Did para 8.3(4)(a) of Direction 90 suggest that decision-makers cannot consider periods of absence or of limited meaningful contact arising from periods during which a non-citizen is incarcerated? Was para 8.3(4)(a) ultra vires the Migration Act 1958 (Cth)?

Federal Court. Does the concept of proportionality play a role in determining whether an exercise of discretionary power was legally unreasonable? Does the concept of legal unreasonableness apply to individual aspects of the fact-finding of a decision-maker, such as credibility findings? Does the concept of proportionality form part of the assessment of whether a credibility finding has been made in accordance with established principles as to illogicality or irrationality?