Case Law Updates

Federal Court. In the context of the review of a decision under s 501CA(4) of the Migration Act 1958 (Cth), the Minister is obliged to lodge with the Tribunal every document in the Minister’s possession that is ‘relevant to the making of the decision’: s 500(6F)(c). Does it necessarily follow that the Tribunal is under an obligation to at least consider the documents lodged with it under s 500(6F)(c) as relevant documents? In Plaintiff M1, the High Court warned of the danger of labels such as "active intellectual consideration" inviting impermissible merits review. Does the use of such labels necessarily invite merits review?

Federal Court (Full Court). Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?

Federal Court. If a party argues on appeal that they were denied procedural fairness in proceedings in the court below, is the question of whether the appeal is futile to be determined "from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review"?

Federal Court. Would an error in exercising the power in s 501(3A) more than once in respect of the same failure to pass the character test in s 501(3A)(a) not be material if a separate conviction and sentence existed which, although not relied upon for the purpose of s 501(3A)(a), on its face met the threshold of the Minister being satisfied as to an applicant having "a substantial criminal record"?

Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?

High Court. The Respondent was successful in defending a an application for special leave to appeal from the Full Court of the Federal Court, with costs. The Respondent then made an offer of compromise, demanding payment of a reduced amount of the costs it was entitled to claim pursuant to the High Court scale of costs. Was the offer valid, with the result that the applicant is required to pay costs on an indemnity basis?

Federal Court. Was the MOC's opinion that the costs would be likely to result in a significant cost to the Australian community in areas of health care and community services incorrect "because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018"?

Federal Court. Did the Federal Circuit and Family Court (FCC) deny the appellant Minister procedural fairness? Is the question of whether the FCC denied the Minister procedural fairness one of law? If so, is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?

Federal Court. Section 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) read: "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth)?

Federal Court. May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer? Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified? In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?