Case Law Updates

Federal Court. Did the Tribunal err by assuming that its task was a ‘re-exercise’ of a general discretion having regard to the considerations in Direction 79? If so, but the Tribunal nevertheless engages in a balancing exercise of the factors set out in Direction 79, might the error be immaterial, as such a balancing exercise is, in substance, the same as the exercise involved in the exercise of a discretion?

Federal Court. In an application for mandamus compelling performance of the duty under s 198AD(2), does the applicant bear the onus of establishing "the non-existence of those circumstances described in ss 198AE, 198AF and 198AG which make s 198AD inapplicable"? Does s 198AD apply to a 'fast track applicant'? Does AJL20 apply to s 198AD(2)? Does FCA have power to order that the applicant be kept at the home of his supporter for the purpose of "immigration detention"?

Federal Court. In Direction 79, primary and other considerations were specified as matters that must be taken into account 'where relevant'. For the purposes of determining whether there has been compliance with Direction 79, is relevance a matter to be objectively determined? Should judicial review applicants identify particular aspects of the reasoning of an administrative decision said to be illogical or irrational and then claim that, as they were material, there was legal unreasonableness?

Federal Court (Full Court). "In light of the findings of the Tribunal (which are treated as findings of the Minister pursuant to s 43(6) of the [AAT Act]), and/or the direction of the Tribunal made pursuant to s 43(1) of the AAT Act", was the Minister "obliged to conclude that [the respondent] was not a danger and/or risk to the Australian community"? Should it be "implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1)"?

High Court. Should the hypothetical, fair-minded lay observer be attributed with knowledge "that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them"?

Federal Court. Can a failure by the IAA to accede to or respond to a request made by an applicant to provide submissions in excess of five pages constitute a denial of procedural fairness?

Federal Court (Full Court). In the decision in Stewart  plainly wrong? If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error? If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court (Full Court). Does the deeming effect under r 2.55(7)(a) apply to r 2.52(2)(b)? Does the mere fact that a State prison can be a place of immigration detention mean that a person held there is "in immigration detention"? Can it be said that "the act of “an unidentified person” giving him the notice of cancellation cannot amount to “service” within the meaning of" r 5.02?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?