Case Law Updates

Federal Court (Full Court). Is it "permissible for the Court to speculate as to how the Tribunal might have reasoned or what conclusions it might have reached if it had not made the error in question"?

Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?

Federal Court: Was there an apprehension of bias by reason of same AAT member hearing both nomination refusal review and  corresponding 457 visa refusal review? Did Tribunal's finding that Appellant's evidence was not “persuasive or compelling” of itself amount to a finding that the Appellant was not a credible witness? Did Appellant, who was represented, waive apprehension of bias claim by not asking for the member to recuse herself? During appeal to FCA, it arose that the further nomination application had been refused. Did that mean that  apprehension of bias, if established, was not material? Did Isbester apply to this case? Was refusal to adjourn review legally unreasonable?

Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Court (Full Court). 1st Appellant applied for protection visa and added her children, 2nd and 3rd Appellants. Until and including AAT hearing, children had not made their own protection claims. They all attended the hearing in person. Practitioner also attended, but over the telephone, as his flight was delayed. Children were neither heard nor asked to be heard. 1st Appellant told AAT during hearing her children did not have their own protection claims and practitioner did not intervene to correct her. AAT asked for children to leave hearing room while 1st Appellant gave evidence, which they did. Practitioner did not object to that, but made post-hearing submissions including children's own protection claims. Can it be said that lack of objection and intervention meant that procedural fairness obligation in s 425 was not breached? If so, does that imply practitioners have a right to do so?

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?

Federal Court: 'It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else'

Federal Court: AAT failed to disclose a document containing adverse information and its existence. That document was not protected by a non-disclosure certificate. Non-disclosure constituted a breach of procedural fairness. Was that breach material to the decision? Can it be inferred from s 359A and from the lack of reference in the Tribunal's decision record to that document that its non-disclosure was not material to the decision? Does the copying by an AAT member of the reasons of a prior member necessarily mean jurisdictional error?

Federal Court (Full Court). In assessing Direction 79, can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?