Case Law Updates

Federal Court: although legal unreasonableness is not amenable to fixed formulae, this decision contains an interesting description: 'A conclusion, whether stated definitively or arising as a matter of generalisation ... , that is inherently inconsistent with another conclusion (in the sense that at least one of them must be wrong) is one that is attended by irrationality or illogicality of the extreme kind to which the authorities refer'.

Federal Court (Full Court): An error is only jurisdictional if material and only material if, had it not been made, the decision could have been different (HCA: Hossain). Materiality is a question of fact in respect of which judicial review applicants bear the onus of proof (HCA: SZMTA). It was incumbent on the appellant to demonstrate what would have occurred had the error not been made (FCAFC: Ibrahim). Differently constituted, the FCAFC disagreed with that aspect of Ibrahim, distinguished SZMTA and Hossain and reconciled the latter 2 cases with WZARH.

Federal Court: The FCA assumed, without determining, that 'the exercise of power under s 501A is subject to an implied obligation that it be exercised within a reasonable time'. Given that assumption, was that obligation breached by the Minister's 5-month delay in making a decision?

Federal Court: It is often said that jurisdictional errors made by an original decision-maker are always irrelevant to a merits review application, given that the Tribunal will make a decision de novo. However, that is not always the case, as this decision illustrates.

Federal Court: In deciding whether to affirm a decision of the Minister to cancel an approval for citizenship under s 25 of the Citizenship Act 2007, was the AAT required to take into account the legal consequences of its decision? If so, was the removal from Australia a legal consequence? Was the AAT required to take into account "non-protection" representations about what would happen if the AAT affirmed the citizenship approval cancellation?

Federal Court: Was the AAT obliged to call a psychologists for cross-examination? Was the AAT's reason illogical on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both [psychologists]' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

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: Do practitioners have a 'right' to object to unfair questions at Tribunal hearings? Must joint liabilities be owed between applicant and sponsor or must they be owed by them, jointly, to others? If applicant and sponsor owe financial obligations to each other, can that tell against the existence of a relationship? Can the gifting of a car tell against the pooling of financial resources? Can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?

Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?