Case Law Updates

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court. Is the validity of an application to the Tribunal under s 500 of the Migration Act 1958 (Cth) a jurisdictional fact? By finding that the review application was out of time, did the Tribunal implicitly found that that application was invalid? Did the mere sending of a bundle of documents to the Tribunal constitute a valid Tribunal application?

Federal Court. Must there be something exceptional about that which is said to be 'in the national interest' under s 501BA(2)(b) of the Migration Act 1958 (Cth)?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Federal Court. Paragraph 34(3)(b) of Citizenship Act 2007 provided citizenship revocation could not occur if "the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country". Is the question whether Applicant would become “a person who is not a national or citizen of any country” a jurisdictional fact, so that the Court can and should answer that question for itself? Is s 34(3)(b) a limitation upon, as opposed to a precondition for, the exercise of the power to revoke citizenship?

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?

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. Can it be said that the risk of harm to the applicant from violence and crime upon removal to South Sudan is not reduced by reason that the applicant may make a protection visa application, as such an application may be refused? In other words, should Plaintiff M1 be distinguished?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?