Case Law Updates

Federal Court. Can a failure by the IAA to accede to or respond to a request made by an applicant to provide submissions in excess of five pages constitute a denial of procedural fairness?

Federal Court (Full Court). Was the Minister’s decision under s 501BA(2) of the Migration Act 1958 (Cth) vitiated by reason of the failure to afford natural justice to the Appellant as a result of the invitations to her to provide material and the subsequent omission to have regard to the last provided piece of information?

Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides that "[a] person is eligible to become an Australian citizen if the Minister is satisfied that the person ... is of good character at the time of the Minister's decision on the application". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?

Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?

Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?

Federal Court (Full Court). Would exclusion based on s 5H(2)(b) result in exclusion based on 36(2C)(a)(ii) of the Migration Act 1958 (Cth) and vice-versa? If any part of the decision on the application for a protection visa relied upon either of those provisions, must review be sought in the General Division in order to be valid? Is the conferral of jurisdiction to review a decision 'relying on' either of those provisions a conferral of jurisdiction to review every aspect of that decision?

Federal Court (Full Court). Section 55ZF of the Judiciary Act 1903 (Cth) provides that the Attorney-General may issue "Legal Services Directions" that are to apply generally to Commonwealth legal work. Section 55ZG provides that some persons or bodies such as the Commonwealth "must comply with Legal Services Directions". Is a breach of one of those directions, the Model Litigant Principles, actionable?

Federal Court. Is the conduct listed in cl 8.5(2) of Direction 110 exhaustive for the purposes of cl 8.5?

Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?

Federal Court (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?