Case Law Updates

Federal Court (Full Court). Can it be said that, "if it is common ground between parties that a particular fact is so, then it is a denial of procedural fairness for an administrator, for example, the Tribunal, to depart from that position without giving each party an opportunity to make submissions on that subject; in other words, ambushing by a decision-maker can amount to jurisdictional error"?

Federal Court. Were the individual subjects of the applicant’s Graduate Diploma in Business capable of being considered by the Tribunal as specifically relevant to the applicant’s nominated occupation of Information and Communications Technology (ICT) Business Analyst (ANZSCO Code 261111), with the result that the Tribunal could have considered the Diploma as 'closely related' to that occupation under cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth)?

Federal Court. Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"? Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?

Federal Court (Full Court). Is 'danger' as used in s 36(1C)(b) of the Migration Act 1958 (Cth): such that "the harm that will eventuate if the danger becomes a reality is non-trivial" and "of a physical or psychological kind"; one "that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates"? Is the 'Australian community' as used in s 36(1C)(b) conceived of as the community as a whole and/or any person or persons who are part of it?

Federal Court. Should subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention? Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre? If the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised, was the applicant’s detention thus unlawful?

Federal Circuit and Family Court. Are disbursements, including filing fees, in migration litigation generally not to be included in costs awards for migration judicial proceedings? Are the scale costs in the Circuit Court inclusive of filing fees? Can an application for costs possibly, or arguably, include the filing fee in migration proceedings brought in the Circuit Court?

Federal Court. Did cl 9.2 of Direction 90 assume removal from Australia? Was cl 9.4.1 capable of requiring consideration of removal or indefinite detention? Was it "illogical, irrational or otherwise legally unreasonable for the Tribunal to reduce the weight which it would otherwise have given to the other considerations in cll 9.2 and 9.4.1 because, in the applicant’s current circumstances, the Tribunal found that the only way in which he could be removed to South Sudan was at his own request"?

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?

Federal Court (Full Court). Section s 43(2B) of the AAT Act provided that written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Is a failure to give reasons as required an error of law?

Federal Court (Full Court). Does the High Court's decision in Plaintiff M1 detract from the proposition that certain matters in Direction 90 were mandatory considerations which had to be considered even if no representations were made about them, lest the decision-maker make a jurisdictional error? Does the assessment of the materiality of an error made under s 501CA(4) of the Migration Act 1958 (Cth) involve a balancing, instead of binary, exercise?