Case Law Updates

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"?

High Court. Can it be said that, "while [the respondent] may have been motivated to bring the current proceedings out of loyalty to [another person] or to avoid a possible forensic disadvantage to [that person], that does not mean that the proceedings were brought for an improper purpose"?

High Court. Can it be said that "the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa)? Are the circumstances constituting "significant harm" exhaustively identified in s 36(2A)?

Federal Court. IAA affirmed DHA's decision and FCCA dismissed judicial review application. Appellant appealed to FCA, which heard appeal and reserved judgement on 30 May 2019. On 21 Dec 2020, Minister filed affidavit affirming that Appellant departed Australia on 13 Aug 2019, was still offshore and that his BVE ceased to be in effect. Appellant held no visa to re-enter Australia. Did Appellant abandon the appeal by leaving Australia?

Federal Court. Does the "gravity of the obligation upon the [IAA] to make a determination about whether Australia’s protection obligations w[ere] engaged" inform the determination of whether the IAA's power under s 473DD was exercised legally reasonably? Was it "open to the [IAA] to have regard to the inherent implausibility of the new information when considered in light of other information already before it for the purpose of determining whether it constitutes “credible personal information”within the meaning of s 473DD(b)(ii)"?