Case Law Updates

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?

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?