Case Law Updates

Federal Court. Does the "fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer ... mean that the witness is not in a fit state to give evidence"? Is the Tribunal "entitled to expect that a legal representative for a party will assist it in avoiding error"? Is the Tribunal: "bound to receive evidence of little probative value"; entitled "to be selective about the quality and quantity of material it will consider in any case"?

Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?

Federal Court. Should the determination of whether a representative’s email address was provided for the purpose of one matter but not another be determined objectively, without considering the subjective intention? Can an authorisation to receive documents in relation to a business monitoring survey constitute an authorisation to receive documents in relation to a NOICC?

Federal Court (Full Court). Is the power to allow an appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below?

Federal Court. Applicant was an unauthorised maritime arrival (UMA) and thus s 46A barred. In July 2017, Minister made determination that bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. When July 2017 Determination was made, Applicant's mother satisfied criteria (a) to (c). In Sep 2019, Applicant applied for SHEV, but application was considered invalid by DHA, as criterion (c) was no longer satisfied. Was that criterion to be satisfied by reference to July 2017 or the time of the SHEV application? Alternatively, should procedural fairness have applied to an assessment carried out for the purposes of a possible exercise of the Minister's discretion to lift the bar?

Federal Court. Was the Tribunal allowed to 'net off’ or offset against one another the various factors that it took into account when considering under cl 14.5 of Direction 79 the extent of impediments that the Applicant may face if removed from Australia?

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?

Federal Court (Full Court): 'Where, as here, material is brought forward in an apparently genuine way that may lead to a reconsideration of an earlier determination as incorrect, it would be wrong to prevent the consideration of factual matters relevant to the making of the preferable decision by reference to' the principle of issue estoppel

Federal Court (Full Court): 'There is no requirement ... in the Migration Act imposed on the Minister to comply with State (or Commonwealth) privacy laws in the obtaining of information' which can then be used by the Minister when making a decision on whether to cancel a visa under s 501(2)