Case Law Updates

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?

Federal Court. Would the consideration under s 501CA(4) of the Migration Act 1958 (Cth) and para 9.2(1) of Direction 99 of the extent of impediments to removal from Australia weigh against revocation only in exceptional circumstances?

Federal Court. Does the fact that a particular conclusion on a particular issue is based on specialised knowledge "have the result that the rules of procedural fairness do not require that the issue be brought to the attention of an applicant if the issue is a critical or important one which is not obvious on the known material"?

Federal Court. May a jurisdictional error in the form of a breach of procedural fairness "be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given"?

Federal Court. Can it be said that s 500(6J) of the Migration Act 1958 (Cth) "does not apply to information which is sought from the applicant by the Tribunal of its own initiative, and, instead, it applies only in respect of information provided by the applicant in support of his case in chief"?

Federal Court. In CRNL, the Full Court held that the Tribunal in that case had ascribed weight to the various considerations, having considered each in isolation, and then expressed a conclusion "without demonstrating that it actually weighed the various considerations against each other", which amounted to a jurisdictional error. Should CRNL be distinguished?