Case Law Updates

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?

Federal Court. In determining pursuant to cl 13.1.1(1)(e) of Direction 79 "whether there is any trend of increasing seriousness", should the trend be determined by reference to the dates of the offending, as opposed to the dates of the conviction for such offending? If a particular offending is followed by a less serious offending, does that necessarily mean that the trend of offending is of decreasing seriousness? Is the determination under cl 13.1.1(1)(e) a jurisdictional fact?

Federal Court. Is the power under r 36.75(2) of the Federal Court Rules 2001 (Cth) to set aside or vary an order dismissing an appeal discretionary? What are the relevant considerations in the exercise of the power under r 36.75(2)? Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?

Federal Court. Is what the High Court said in SZSSJ also applicable to s 351 of the Migration Act 1958 (Cth)? Can the Minister lay down Ministerial intervention guidelines?

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

Federal Court. In what circumstances can courts admit evidence adduced on judicial review? If the Tribunal is exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Migration Act 1958 (Cth) in respect of a decision under s 501CA(4) made by a delegate of the Minister, does s 43 of the AAT Act invest for that purpose the Tribunal with all of the powers, discretions and statutory obligations of the delegate?

Federal Court (Full Court). Do ss 197C and 198 "preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia"? Can a delegate or the Minister rationally and reasonably "decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful"? Is there an inconsistency between the terms of para 14.1(6) and s 197C? Is the prospect of indefinite detention a mandatory consideration?

Federal Court. Can it be said that "engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight"?

Federal Court. Can it be said that "evidence that a particular cohort of persons has a 13% chance of recidivism is equivalent to a statement that 13 out of 100 persons in the cohort will reoffend but that evidence, by itself, says nothing about the likelihood of a particular member in the cohort reoffending"? Did cl 6.3(5) contain a mandatory consideration? Are the offences to which cl 13.1 of Direction No 79 is directed "violent and/or sexual crimes against women, children and vulnerable members of the community"?

High Court. Is the Minister required under ss 54(1), (2)(c), 55(1) or 56(1) to consider relevant information given or gotten at an interview? Is "compliance by the Secretary of the Department with the consequent procedural duty to give to the Authority specified categories of "review material" [under 473CB] affected by errors in the translation of words spoken during the protection interview"? Can IAA make a jurisdictional error if it relies on misinterpretation and does not invite applicant to an interview or does not exercise its powers to get and consider new information which might address the misinterpretation?