Case Law Updates

Federal Court (Full Court). Do the words “a danger” in s 36(1C) of the Migration Act 1958 (Cth) refer to more than trivial harm? Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community? Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?

The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"

Federal Court. Can the power in s 501BA(2) of the Migration Act 1958 (Cth) only be exercised within a reasonable time after the original decision? If so, is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

Federal Court (Full Court). The Minister found that the Appellant failed to recognise that he had "psychological sexual issues relating to children". Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"? If so, was the adjective "psychological" used by the Minister in its unscientific sense?

Federal Circuit and Family Court. Did the Tribunal’s unattributed copying from the delegate’s reasons, combined with other factors, lead to the conclusion that it failed to bring its own independent mind to the merits of the review? If so, is that a type of error that is material by definition?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?

Federal Court. How should the 35 days referred to in s 477(1) of the Migration Act 1958 (Cth) be counted? Was the date of the "migration decision" the date when the Tribunal issued a corrigendum to its decision?