Case Law Updates

Federal Court (Full Court). Is the word “should” in para 8.4(4) indicative of a requirement that must be followed (i.e. that is mandatory)? Is it doubtful that the Tribunal can permissibly have independent regard to community expectations as assessed by it, given the Direction’s express provisions with regard to that subject which can be expected to cover the field?

Federal Court. Is there "authority to the effect that specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making"? Can it be said that a Tribunal, "unlike a court, is expected to build up “expertise” in matters such as country information" and that taking that expertise into account amounts to a want of procedural fairness by reason of pre-judgment? Does Minister bear onus of proving he has specialist accumulated knowledge?

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?

Federal Court. Appellant claimed in his protection visa application that he was arbitrarily detained in Ethiopia at the airport and driven to prison by a person he believed was a private driver. He claimed: he begged for driver to call his wife and tell where he was being taken to; and that the driver did so. AAT invited Appellant to speculate on why driver would have made the call. AAT itself speculated driver would not have called Appellant's wife. Was it irrational for AAT to rely on a matter the Appellant was asked to speculate about as a basis to make adverse credibility findings against him on the factual elements of which he had first-hand knowledge? Is the "adjectival description of “extreme” ... a necessary element in a finding of illogicality or irrationality"? How high is the materiality threshold?

Federal Court (Full Court). FCA had said: "The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation". Did FCA engage in merits review by saying that mandatory considerations under s 501CA(4) which AAT had ignored "were not sufficient to outweigh those matters" and that AAT's error was thus immaterial? Does the materiality test threshold vary from statute to statute? Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness? Does the materiality threshold vary according to the type of decision within the Migration Act? Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'? Was it necessary, in order to establish the materiality of AAT's error, for Appellant to demonstrate by evidence what he would have done had error not been made?

Federal Court. Does the Briginshaw principle favour a conclusion that a person's onus of proving that they were not recklessly indifferent to fraud is low? Is there anything untoward about a client attending the office of a practitioner for the purpose of procuring their services and making an upfront payment? Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?

Federal Court. The Minister submitted to the Tribunal that it should give no weight to the statements by the applicant's witnesses, as they had not been made available for cross-examination. Was the applicant denied procedural fairness in circumstances where his representative: did not object to the course proposed by the Minister or indicate to the Tribunal that he was caught by surprise by that submission; was asked by the Tribunal whether he wished to respond to any points made by the Minister’s representative?

Federal Court (Full Court). After the Full Court's decision in Pearson was handed down, s 5AB was inserted into the Migration Act. Does the reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” capture aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act (NSW)?

Federal Court. In determining pursuant to cl 13.1.1(1)(e) of Direction 79 "whether there is any trend of increasing seriousness", should the trend be determined by reference to the dates of the offending, as opposed to the dates of the conviction for such offending? If a particular offending is followed by a less serious offending, does that necessarily mean that the trend of offending is of decreasing seriousness? Is the determination under cl 13.1.1(1)(e) a jurisdictional fact?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?