Case Law Updates

Federal Court. Does the rule in Browne and Dunn, being one of fairness, apply equally to a trial judge as to counsel?

Federal Court. Section 477(1) of the Migration Act 1958 (Cth) provided that an application for judicial review "must be made to the court within 35 days of the date of the migration decision". Was it "necessary that an application has been made, accepted for filing and has become part of the records of the court before it is an ‘application … made to the court’ for the purposes of the time stipulated in s 477(1)"?

Federal Court. Can it be said that, "where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category"?

Federal Court. When considering the exercise of his discretionary power under s 501A(2) to refuse to grant a visa in the national interest, is the nature of the visa a mandatory consideration? As Minister accepted Applicant would suffer harm if returned to NZ, should Minister have: explained why returning her to NZ would be in the national interest; considered "the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant"?

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?

Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?

Federal Court. Section 91X of the Migration Act 1958 (Cth) prohibits publication by the FCCA, FCA or HCA of the name of any person who has applied for a protection visa, if the proceeding relates to that visa. Is s 91X constitutionally valid? If it is in the interests of justice, was it open to the FCA to order that an administratively allocated set of letters and numbers be replaced by a "human pseudonym"? If so, was it in those interests to so order so late in the appeal?

Federal Court. Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred? Can it be said that, under s 501(3) of the Migration Act 1958 (Cth), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test?

High Court. Can it be said that a non‑citizen who does not have a visa that is in effect is not liable to detention under s 189(1) of the Migration Act 1958 (Cth) if they are not an alien? Can it be said that, "what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time"? In other words, can it be said that what constitutes reasonable grounds cannot be invalid ab initio?

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?