Case Law Updates

Federal Court. The Migration Act 1958 (Cth) pointed to the deadline for seeking merits review falling on a Saturday, although the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) (AIA) was to extend it until the following Monday. By being silent on the effect of s 36(2) of the AIA, did the letter notifying of a non-revocation decision fail to state the deadline, with the result that the Tribunal application lodged years later was not late?

Federal Court. On 24 June 2020, FCA ordered Home Affairs Minister to decide a protection visa application by 3 July 2020 at noon. On 1 July 2020, Minister's lawyers sent an email saying that Minister was not available to personally make the decision within the timeframe and asking for variation of the order so that any other portfolio Minister could make the decision. On 2 July 2020, FCA accepted that request and ordered Home Affairs Minister to either personally make the decision or ensure it will be made by another portfolio Minister or a delegate by 3 July 2020 at noon. Applicant sought orders directing the institution of contempt proceedings in the event of non-compliance with the latest orders. If those orders are not complied with, could any explanation for non-compliance require an affidavit by the Minister personally and for the Minister to make himself available for cross-examination in contempt proceedings?

Federal Court: a single judge of the FCA accepted that DFQ17 stood for the proposition that refusal letters must clearly convey the deadline for merits review, but also accepted the Minister's argument that the particular letter did so. As a result, arguing DFQ17 has now become more challenging, meaning that submissions on DFQ17 need to be really well articulated.

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

Federal Court. Were the individual subjects of the applicant’s Graduate Diploma in Business capable of being considered by the Tribunal as specifically relevant to the applicant’s nominated occupation of Information and Communications Technology (ICT) Business Analyst (ANZSCO Code 261111), with the result that the Tribunal could have considered the Diploma as 'closely related' to that occupation under cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth)?

Federal Circuit Court: for the purposes of cancellation under s 116(1)(e), the risk to the good order of the Australian community included risk caused by actions of members of that community; those members needed not be reasonable nor identified

Federal Court. Can it be said that the non-revocation notice "substantially complies with the requirement in s 501G(f)(ii) of the Migration Act despite the omission in this case of an explanation of the effect of s 36(2) of the Acts Interpretation Act"?

Federal Court (Full Court). Was it open to the Minister to seek to persuade the Tribunal that the Appellant had engaged in the conduct that constituted the offence of which he was acquitted? In other words, could the Tribunal "go behind" the acquittal? In a case which is concerned with a claim of apprehended bias based upon irrelevant but prejudicial material being before the decision-maker, are the reasons given for the decision relevant to determination of whether a claim apprehended bias is made out?

Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?

Federal Court. For the purpose of the old version of r 5.19(3)(d)(i), now arguably reflected in rr 5.19(5)(n) and (9)(g) of the Migration Regulations 1994 (Cth), does the circumstance that a nominator "has either generated modest profits or indeed has traded at a loss in any year or years" of itself "give rise to a conclusion that the person (nominee) will not be employed on a full-time basis in the position for at least two years, [the nominator] having contended that it would so employ the nominee and having put material before the Tribunal to that effect"?