Case Law Updates

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?

High Court. Does responsibility for ensuring an absence of bias, whether actual or apprehended, ultimately lie with a court as an institution and not merely with a member of that court whose impartiality might be called into question? Was there a reasonable apprehension of bias in circumstances where one of the members of the Full Court of the Federal Court hearing a migration-related appeal had appeared for the Crown against the appellant in criminal proceedings?

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?

Federal Court. Can cl 103.213(1)(c) be satisfied even if the course it refers to has not commenced, so long as a reasonable time to commence such study has not yet expired? Does cl 103.212(1)(c) allow the penumbra of study (such as enrolment or other preliminary steps) to commence since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system?

Federal Court (Full Court). Is the word “should” in para 8.4(4) indicative of a requirement that must be followed (i.e. that is mandatory)? Is it doubtful that the Tribunal can permissibly have independent regard to community expectations as assessed by it, given the Direction’s express provisions with regard to that subject which can be expected to cover the field?

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

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?