Case Law Updates

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?

Federal Court. Are administrative decision-makers "bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented"?

High Court. Is there a "principle in Australian common law respecting the single legal personality of spouses"? In other words, do husband and wife form a single person at common law? Does or did the Australian common law include "a rule by virtue of which the common law of conspiracy does not apply to spouses"?

High Court. Plaintiff missed AAT deadline and thus applied to HCA for judicial review (JR). Could HCA remit matter to FCA or FCCA? Was delay of 6 months in JR application substantial? What is required for the Minister to discharge his/her obligations under s 57(2)? Although s 55(2) provided that Minister was not "required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information", can it be legally unreasonably for Minister to fail to delay?

Federal Court. Applicant was convicted of manslaughter. In considering under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa, Minister referred to a media article that, according to Minister, related the Applicant's "failure to provide information to the Queensland Parole Board in relation to the body of the deceased notwithstanding that he was the admitted instigator of the events leading to his death". Was Minister prevented from considering that article, in light of the FCAFC decision in HZCP?

Federal Court. Para 21 of Practice Direction issued by ATT's President under 473FB concerning IAA included: "Your submissions should be no longer than 5 pages". Para 23 stated that if an applicant wanted to give the IAA new information, he/she must also provide an explanation as to why the information satisfied s 473DD. Para 24 read: "Your explanation should be no longer than 5 pages and must accompany any new information you give to us ". Do the 5 pages in para 21 include the 5 pages in para 24? Is there a page limit to the "explanation" in para 23?

Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?

Federal Court (Full Court). Can it be said that, although a court cannot scrutinise an administrative decision with "an eye keenly attuned to the perception of error", it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case"?