Case Law Updates

Federal Court. Can it be said that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"? Would a fair-minded observer "reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers"? Did the Tribunal effectively take the role of a contradictor?

Federal Court. Can it be said that "information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual" and therefore that country information may include "personal information" for the purposes of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Can it be said that, "if it is common ground between parties that a particular fact is so, then it is a denial of procedural fairness for an administrator, for example, the Tribunal, to depart from that position without giving each party an opportunity to make submissions on that subject; in other words, ambushing by a decision-maker can amount to jurisdictional error"?

Federal Court. In an application for an extension of time within which to appeal, should the merits of the appeal be approached at a "reasonably impressionistic" level? Or should the merits of the appeal rather be assessed in a "rough and ready way"? In determining whether to grant leave to rely upon a ground not raised before the primary judge, is it relevant that the grant would "[deprive] the respondent of a right to appeal in respect of the consideration of the issue because any further appeal is only available with leave"?

Federal Court (Full Court). Can it be said that, "if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister"?

Federal Court (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?

Federal Court (Full Court): Can the rules of procedural fairness require "special steps or procedure" to be followed in particular circumstances? Could it be said that "there may be sufficient material in a particular case so as to put the AAT on notice that the review applicant did not, or might not, have [the capacity to give evidence]", thus requiring the AAT to take the "special step" of inquiring about capacity? Was this case one of those particular cases?

Federal Court. Did the withdrawal of the appellant's visa application occur by operation of s 49 of the Migration Act 1958 (Cth), with the result that: a) no decision was made in order for the withdrawal to take effect; b) there was no failure or refusal on the part of Minister to make a decision in relation to the visa application; c) the Minister did not make a "migration decision"; d) the Federal Circuit and Family Court had no jurisdiction under s 476 of the Act to review the withdrawal?

Federal Court. In determining whether a time extension to file a judicial review application should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?

Federal Court. In AJL20, the FCA held that, as the duty to remove a non-citizen from Australia under s 198 of the Migration Act 1958 (Cth) is not country specific, the attempts to remove a person should not be limited to their home country. What factors informed the answer to the question of whether the Minister discharged the duty to remove the Applicant as soon as reasonably practicable? Was AJL20 plainly wrong?