Case Law Updates

Federal Court (Full Court). Did cl 14.1(2) and (6) of Direction 79, which conflicted with ss 197C and 198 of the Migration Act 1958 (Cth), effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia? Is the damage to Australia's reputation if it refoules a person a mandatory consideration for the purposes of s 501CA(4)?

Federal Court. Are the procedural fairness duties affected by whether a Tribunal applicant is represented? Is the duty to consider claims not clearly articulated, but which arise tolerably clearly from the material before the Tribunal, affected by whether a Tribunal applicant is represented? Was reliance on ss 36(2)(b) or (c) tolerably clear? Are those 2 provisions a 'time of decision' requirement?

High Court. FCCA delivered ex tempore reasons to respondent, who did not speak English. The orders were translated, but not the reasons. Respondent did not receive or request a copy of the transcript of the ex tempore reasons and appealed to FCA before statutory deadline. Written reasons were delivered after such deadline, but well before FCA's decision. Are the procedural fairness requirements in the context of a particular decision directed to the process that occurs before the decision is made, but not after it? In other words, is the obligation to provide reasons related to procedural fairness requirements?

Federal Court. For the purpose of s 501(6)(c)(ii) of the Migration Act 1958 (Cth), can the communication of a belief, or the existence of an uncommunicated belief, be considered "present general conduct"? Further, there are 2 incidents of the common law procedural fairness rule: 1) to give an affected person an opportunity to comment on adverse material obtained from other sources; 2) to identify to them issues not obviously open on the known material. Were these incidents excluded by s 51A(1)?

Federal Court. Section 91X of the Migration Act 1958 (Cth) prohibits publication by the FCCA, FCA or HCA of the name of any person who has applied for a protection visa, if the proceeding relates to that visa. Is s 91X constitutionally valid? If it is in the interests of justice, was it open to the FCA to order that an administratively allocated set of letters and numbers be replaced by a "human pseudonym"? If so, was it in those interests to so order so late in the appeal?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?

High Court. Do the verbs "give" and "invite" in s 501CA(3) require that regard be had to the circumstances of the recipient? Must the information and invitation be given by the Minister, or a delegate, personally? Did the timeframe of 28 days within which to make a revocation request under s 501CA(4) run from the date the invitation was sent via email to the immigration detention centre, instead of when it was handed to the respondent a day later? By incorrectly stating the 28 days by reference to the date of the email, was the invitation invalid? Can an analogy be drawn with DFQ17 ?

High Court. Can it be said that "an unrevoked grant of special leave to appeal entitles an appellant to advance any ground of appeal on which special leave has been granted unless precluded by operation of law such as by waiver or estoppel"?

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Court. Do the "obligations to accord natural justice and the obligation to act within the bounds of legal reasonableness are closely linked and overlap to some extent"? Does "the codifying effect of s 473DA(1)" mean that, "except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness is not the “lens” through which the content of procedural obligations imposed on the Authority in the conduct of a review is to be determined"?