Case Law Updates

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

Federal Court. If the Tribunal suggests that it will consider only a subset of the issues considered by the delegate but in reality also considers other issues considered by the delegate, is it under an obligation under s 360(1) to "invite the applicant to give evidence and present arguments relating to [those other] issues"?

Federal Court. Does the principle according to which a failure on the part of an administrative decision-maker to make an obvious inquiry can be a ground of judicial review apply both s 5(2)(g) of the ADJR Act and an analogous jurisdictional error? What are the circumstances in which a court can receive evidence on judicial review? In public law, is the jurisdictional error ground of "fraud" confined to that of the decision-maker, a party, or a party’s representative?

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court. Can it be said that "interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings"? Would "an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to [the applicant's case] support the interrogatories" sought? If not, would an adjournment of the interlocutory application seeking interrogatory be appropriate?

Federal Court (Full Court). Does the word "may" in s 501CA(4) indicate a discretion? Was AAT obliged to consider best interests of minor children, even if those interests were not advanced by the appellant? If so, can it nevertheless be said that AAT "is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised"? If a child who is not a NZ citizen is granted a subclass 444 visa under s 78(1), does it immediately cease to have effect? If a person's visa is cancelled under s 501(3A), is a visa granted to their child under s 78 cancelled by operation of s 140(3)? If so, does the revocation of a visa cancellation under s 501CA(4) have the effect of nullifying a consequential cancellation under s 140(3)? Does Teoh still have work to do?

Federal Court. Should the words in brackets be read into cl 6.3(5) of Direction 79: "Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life [or their adult life], or from a very young age"?

Federal Court. Can it be said that, "once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case"? Were the circumstances of this case, where the applicant was a self-represented litigant seeking habeas corpus, exceptional? Can it be said that "abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame"?

Federal Court (Full Court). Does the question of the materiality of an error typically (although perhaps not necessarily) arise only once a court is satisfied that the administrative decision-maker exceeded its jurisdiction in some way? Is an administrative decision-maker "relieved of its obligation to consider [a person's] contentions simply because they were not made good on the evidence"?