Case Law Updates

Federal Court. Can it be said that, although the Tribunal would not have been entirely acting of its own initiative if it accepted K's invitation conveyed by the Applicant to speak to the Tribunal, the information that would have been given by K would not have been presented "in support of the [Applicant's] case", as it would rather have been presented as a result of the Tribunal eliciting information from K? In other words, was the giving of information by K precluded by s 500(6H) of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Does the ratio decidendi of Teoh extend to relevant provisions of other international treaties, including Art 12(4) of the ICCPR? If so, is the concept of "legitimate expectation" discussed in Teoh subject to any contrary indication by the legislature or executive? If so, does the Migration Act 1958 (Cth) contain such a contrary indication by the legislative?

Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?

Federal Court. The Appellant sent the Tribunal an email which stated that a document was attached. However, he forgot to attach the document. Was the Tribunal required to inquire about the missing document on the basis that it would be an obvious inquiry about a critical fact that was easily ascertainable?

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court. In the context of administrative law, must a finding that there is a psychological or psychiatric condition be founded upon expert medical or psychological evidence? Was the Minister’s reference to the Applicant’s "psychological sexual issues" a "statement that involved the application of specialist expertise" or that "was not open absent a specialist diagnosis"? Can it be said that "to take account of the fact that he had received a 25% discount in sentencing from the court was to take into account an irrelevant consideration"?

Federal Court (Full Court). Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa? Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries? Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?

Federal Court. Cl 13.1.2(1)(b) of Direction 79 provided that, for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively ... The likelihood of the non-citizen engaging in further criminal or other serious conduct"? Is there a "material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend"?