Case Law Updates

Federal Court: AAT found that a forensic psychologist "was argumentative and defensive ... and did not present as an impartial witness". Although "it will usually be necessary for a decision maker to give reasons for an adverse credit finding", does the same principle apply to expert witnesses? Further, FCA held that the AAT's failure to take into account a claim about a consideration was not material because the Tribunal had already accorded that consideration "considerable weight" in favour of the Applicant.

Federal Court: The Immigration Assessment Authority (IAA) cannot consider new information unless it is credible "personal information", which means information about an identified, or reasonably identifiable, individual. Could the IAA have determined the identity of an individual the subject of a previous IAA decision by accessing the IAA's records, with the result that such a person was "reasonably identifiable"? Alternatively, does "personal information" imply knowledge of a person's name?

Federal Court: The rules that govern an application for injunction at first instance are not the same as those that operate on appeal. This court decision summarises the general principles that govern an application for injunction pending the outcome of an appeal.

Federal Court: The Appellant provided the Immigration Assessment Authority (IAA) with untranslated documents. Was the IAA required to obtain a translation of those documents?

Federal Court: In Sharma, FCA had held that: if "a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence)" in the context of s 501(6)(d)(i); otherwise, "the essential facts underlying the conviction are not immune from challenge", although there is a "heavy onus on a person seeking to challenge" them. Was Sharma wrongly decided? Does Sharma apply to s 116(1)(e)? Further, are the considerations set out in Direction 65 or Direction 79 exhaustive?

Federal Court: Applicant: unsuccessfully applied to FCA for judicial review and appealed to FCAFC; did not rely in those proceedings on the grounds relied on in Ibrahim; applied to the HCA for special leave to appeal the FCAFC's decision; made a fresh application to FCA for review of the same administrative decision while the special leave application was pending, but Registrar refused that application as an abuse of process; applied to FCA for order that Registrar accept his fresh application. Should the Anshun estoppel apply against the fresh application?

Federal Court: Applicant: applied for protection visa; was interviewed; raised a number of claims, except sexual assault; before delegate made decision, claimed he suffered sexual assault. Delegate found the sexual assault claim was embellishment. Matter was referred to IAA under Pt 7AA of Migration Act 1958. IAA took a stronger view than delegate on embellishment and did not exercise power to obtain new information. Was the IAA's decision legally unreasonable? What is the meaning of "credible personal information" in s 473DD(b)(ii)?

Tribunal: One of the components of the Australian study requirement (ASR) is that the applicant must have completed one or more courses that "were completed as a result of a total of at least 2 academic years study". It is commonly said that the duration of the course/s must be of 92 weeks. Is that correct? In this decision, the Tribunal accepted that 2 concurrent courses of 78 weeks each were sufficient to satisfy the ASR. We explain why.

Federal Court: In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with Ibrahim. Can that division be resolved? Further, can errors which individually do not satisfy the materiality test do so if combined?

Federal Court: In Ibrahim, FCAFC held that Minister was not prohibited from affording natural justice under s 501BA(2). In Burgess, FCAFC held that Ibrahim applied to s 501(3). Were Ibrahim or Burgess wrongly decided? If the Minister's decision record disclosed no error in the interpretation of the above provision, but the Minister admits that error in court, does that mean that the decision record should be ignored in determining whether the Minister made a jurisdictional error? Did the transfer of the Applicant between immigration detention centres amount to false imprisonment?