Case Law Updates

Federal Court. Is a failure to disclose other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision fatal to the latter proceeding?

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

Federal Court (Full Court). Does the subject matter of s 501 of the Migration Act 1958 (Cth) deals completely, and thus exclusively, with the subject matter of PIC 4003(b) of Schedule 4 to the Migration Regulations 1994 (Cth), with the result that PIC 4003(b) detracts from or impairs the operation of s 501?

Federal Court (Full Court). Does the ratio decidendi of Teoh extend to relevant provisions of other international treaties, including Art 12(4) of the ICCPR? If so, is the concept of "legitimate expectation" discussed in Teoh subject to any contrary indication by the legislature or executive? If so, does the Migration Act 1958 (Cth) contain such a contrary indication by the legislative?

Federal Court: A person fails the character test if it is reasonable to infer from an Interpol notice [IRN] that the person would present a risk to the community: s 501(6)(h). Applicant applied to FCA, seeking orders restraining Minister from refusing visa and declaring that it was not reasonable to infer risk from IRN. Minister served Notice on Applicant to produce Interpol's Response to Applicant's application for IRN to be deleted. Should Applicant's interlocutory application to set Notice aside succeed, on the basis: that Interpol's response could not be used for the purpose of s 501(6)(h); of public interest immunity?

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

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: A delegate of the Minister refused a protection visa application and provided written reasons, pursuant to s 66 of the Migration Act 1958 (Cth). Those reasons contained the date of the decision, but not the time. The matter was automatically referred to the Immigration Assessing Authority (IAA) under s 463CA, which required the IAA to review the decision as soon as reasonably practicable after the delegate "made" the decision. Did the fact that the letter was silent as to the time of the delegate's decision mean that there was no decision to refer to the IAA?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Federal Court. Due to s 500(6L), AAT had 84 days to decide under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa. At the time of AAT's decision, Applicant still had about 6 years of imprisonment to serve. Could AAT make a legally reasonable decision about the risk the Applicant would present to the community upon release 6 years in advance? Did AAT have "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?