Case Law Updates

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?

Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court. Should the words in brackets be read into cl 6.3(5) of Direction 79: "Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life [or their adult life], or from a very young age"?

Federal Court. Can it be said that "s 417 was exclusively intended to deal with decisions made under s 415 and that s 501J would not be engaged"? Can it be said that "a decision of the IAA was not intended to constitute a “decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa” (s 501J(2)) despite the IAA being “established within” the AAT (s 473JA)"?

Federal Court. Can it be said that "it will almost invariably be the case that there will be differences between the accounts given by a visa applicant" and that the Immigration Assessment Authority's jurisdiction to "review" a decision "is not properly discharged by merely identifying differences between some of the accounts given and labelling those differences “inconsistencies”"?

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Court. As the decision that the applicant sought to compel by mandamus was made favourably to him, with the result that he obtained the practical outcome he pursued, should he be awarded costs? If so, should those costs be offset by costs which the applicant was awarded to pay in a previous court proceeding?

High Court. Can it be said that, while "the broad principle is that the Courts ... must ... administer justice in public", the exceptions to this broad principle are "themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done"?

Federal Court: Can an administrative decision-maker "find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life"? Can it "be said that questions raised and conclusions reached about the stability of the relationship" are irrelevant to an administrative decision-maker's assessment of the factors in reg 1.15A(3)(d)?