Case Law Updates

Federal Court. Do the AAT and the Court have a discretion under ss 501K(2) and 91X(2) respectively of the Migration Act 1958 (Cth) to publish the name of a protection visa applicant?

Federal Court (Full Court). In CWY20 and ENT19, the FCAFC held that it was legally unreasonable for the Minister not to consider the reputational consequences for Australia of breaching its non-refoulement obligations when assessing s 501A(2) of the Migration Act 1958 (Cth) and cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth), respectively. Are CWY20 and ENT19 legally distinguishable for decisions made under s 501(3)? Is there a tension in the High Court's decisions on materiality in MZAPC and Nathanson?

Federal Court. Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational? Can delay be justified on the basis of lack of resources?

Federal Court. Could the applicant’s representations in relation to rehabilitation "be properly engaged with if he relied on evidence of having completed six separate courses (plus counselling) and the Tribunal only took account of the evidence relating to three of those courses"? In assessing whether an error is material, should it be assumed that the administrative decision-maker approached the review with an open mind?

Federal Court (Full Court). Was the Appellant denied procedural fairness in that "the Minister or the Minister’s delegate decided to exercise the cancellation power in s 501(3A) rather than 501(2) [of the Migration Act 1958 (Cth)] when the latter requires the person affected to be given an opportunity to be heard before the power is exercised whereas the former does not"?

Federal Court. Can it be said that the obligation under s 360 of the Migration Act 1958 (Cth) to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened? Are issues which emerge during a hearing also subject to the obligation imposed by s 360?

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?