Case Law Updates

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

High Court. Was the Tribunal required to apply a Direction in force at the time when the decision under review was made or when the application for merits review was made, instead of the Direction in force at the time when the Tribunal made its decision? In other words, did the Appellant have an accrued right to have Tribunal determine his review in accordance with a Direction in force before the date of the Tribunal's decision?

Federal Court. For the purpose of the term "violent crimes" in Direction 110, is there "no inherent or invariable mental state required on the part of a perpetrator before conduct will be regarded as violent", meaning that the term "refers to the application (or threatened application) of physical force contrary to law"?

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), is it possible to consider a non-citizen's criminal history without taking all of it, including a successful appeal on sentence, into account?

Federal Court. Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?

Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?

Federal Court (Full Court). Are the words “other serious conduct” referred to in cl 8.1(1) of Direction 99 limited to criminal conduct or criminal convictions?

Federal Court. Does the expression “child” in s 501(6)(e)(i) of the Migration Act 1958 (Cth) mean a person under the age of 16? If illogicality is established in a finding of fact made on the way to the ultimate decision, instead of illogicality in the ultimate decision itself, and the illogicality is not material by definition, is it only material if it was central (of being “critical” or “not immaterial”) to the ultimate decision?

Federal Court. Applicant could not be removed from Australia, due to effect of NZYQ. In the context of a refusal of a protection visa under s 501(1), Minister submitted to Tribunal that “that there were no third country removal options for the Applicant”. On judicial review, Applicant argued that was not true. Does Applicant have a proper basis to seek discovery of what information was available to the Minister concerning the impending third country reception arrangement with the Republic of Nauru at the time of the Tribunal hearing?

High Court (single Justice). Is a protection visa applicant required to pick the correct "label" to describe his or her claims?