Case Law Updates

Federal Court (Full Court). The Full Court discussed in detail whether single judge decisions of the Federal Court (whether in the original or appellate jurisdiction) bind Full Court decisions (whether in the original or appellate jurisdiction) and vice-versa. It also discussed whether Ali, Ibrahim and BCR16 were correctly decided and the effect of Direction 75.

Federal Court (Full Court). Commonwealth made representations to Appellant that he was an Australian citizen by granting him a passport and enrolling him to vote. He reasonably relied on those representations to his detriment in that he never applied for citizenship and became liable to visa cancellation under s 501(3A). If Commonwealth was his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) and breached its duty to apply for citizenship for him, did the breach, coupled with the representations, render the Minister equitably estopped from treating him as a non-citizen?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

Federal Court. Must a non-citizen be convicted of, or charged with, an offence in order for the Minister to lawfully have regard to the alleged conduct for the purpose of s 501(3) of the Migration Act 1958 (Cth)?

Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?

Federal Court. Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision? Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"? Once significant delay is established, does the evidentiary onus shift to the Minister?

Federal Court. The Appellant answered in the affirmative the following question contained in a form given to him by the Tribunal: "Do you and any other applicants consent to the Tribunal deciding the review without a hearing?" Was there ambiguity as to whether consent was given for the Tribunal to proceed without a hearing? Is it "contrary to the ‘spirit’ of the Migration Act [for the Tribunal] to ask an applicant if he or she consents to a review without an oral hearing"?

Federal Court. Is an order requiring the disclosure of any record of the Minister’s locations not to be made lightly? Can it be said that, "where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister’s obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual’s right to seek judicial review"?

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?