Case Law Updates

Federal Court. Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention? Can it be said that, although any potential harm to the applicant if he is removed is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?

High Court. Does functus officio address the capacity, or authority, to adjudicate a matter, whereas estoppel addresses the capacity of the litigants to litigate a matter?

High Court. In hearing an interlocutory appeal concerning the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), was the Court of Appeal required to apply the principles in House v The King applicable to the review of discretionary decisions or the "correctness" standard? 

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), can it be said that, in "taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration"?

Federal Court. As the decision that the applicant sought to compel by mandamus was made favourably to him, with the result that he obtained the practical outcome he pursued, should he be awarded costs? If so, should those costs be offset by costs which the applicant was awarded to pay in a previous court proceeding?

Federal Court. A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law? Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?

Federal Court. Did para 9.4(1) of Direction 99 apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company? If so, did the Tribunal misinterpret para 9.4(1) in circumstances where the Applicant was self-employed?

Federal Court. Is s 34(5)(a) of the Australian Citizenship Act 2007 (Cth) satisfied only where the citizen has been convicted of a single offence, as opposed to multiple offences? Is there a meaningful distinction in the context of s 34(2)(c) between the concepts of it being contrary to the public interest for a person to remain an Australian citizen and it being in the public interest that that person not continue to be an Australian citizen?

Federal Court. Does the rule in Browne v Dunn apply to the Tribunal in the General Division? Doe the concept of materiality of an error for judicial review under s 75(v) of the Constitution apply to errors of law under s 44 of the AAT Act?

Federal Court. Should it be inferred that the reason why the Minister determined the visa application shortly after the judicial review application was filed is that he capitulated and recognised that the Applicant would succeed in his claim to a writ of mandamus, with the result that the Respondents should pay the Applicant's costs incurred until the time of the visa grant?