Case Law Updates

Federal Court (FCA). Can it be said that, "in the ordinary course all issues of fact and law should be determined at the one time and that the [FCA] should generally exercise the power in r 30.01 of the Rules cautiously and sparingly"? 

Federal Court (Full Court). Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right [such as the privilege against self-incrimination] may for that reason be characterised as legally unreasonable"?

Federal Court: DHA refused visa under s 501(1). AAT remitted matter for reconsideration with a direction that the discretion under s 501(1) be exercised in the applicant’s favour. Minister personally set aside AAT's decision under s 501A(2) in the national interest. Minister's exercise of discretion relied in part on erroneous finding that Applicant entered AU on a false identity. In Lu, the risk of harm posed by an affected person to AU community based on the correct criminal record was a mandatory relevant consideration in the exercise of the discretion under s 501A(2). In Gbojueh, risk of harm was mandatory also in the context of determining the national interest. Should Lu be interpreted as only applying to erroneous findings in relation to a non-citizen's criminal record and thus be distinguished? Did Minister's satisfaction about the national interest involve a jurisdictional fact?

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'?

High Court. In a proceeding for a declaration that an officer exceeded the executive power of the Commonwealth in declining to refer to the Minister a request for intervention under s 195A of the Migration Act 1958 (Cth), can the Federal Court "make an interlocutory order restraining officers from removing the unlawful non‑citizen, notwithstanding the duty imposed on officers by s 198(6) to remove the unlawful non-citizen as soon as reasonably practicable, where the proceeding does not challenge the valid application of s 198(6) to the unlawful non-citizen"?

Federal Court. Section 486E of the Migration Act 1958 (Cth) provides that a person must not "encourage" the commencement or continuation of migration litigation if the case "has no reasonable prospect of success". Section 486F provides that a court may make a costs order against a person who breached s 486E. Can it be said that a "lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense"?

Federal Court. In an FCA decision we recently summarised, the Minister's application for leave to appeal from a decision where he was ordered to answer an interrogatory aimed at determining whether he had turned his mind to a decision was dismissed. In a different case extracted in this article, one of the questions to the FCA was whether it should use its discretion to refuse to grant leave to the Applicant for an interlocutory application seeking a very similar interrogatory, because of the “impracticalities” presented by the possibility of portfolio Ministers being overwhelmed with interrogatories.

Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...

Federal Court (FCA). If the FCA has jurisdiction to determine a claim for damages for false imprisonment and habeas corpus on the basis that the Respondent failed to remove the Applicant from Australia as mandated by s 198, does 476A exclude the FCA's jurisdiction to entertain the Applicant’s claims for injunctive relief requiring the Respondent to discharge its duty under s 198 or to declare that the Respondent failed to comply with that duty? Can the FCA issue a peremptory writ of mandamus?

Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?