50 shades of TOD?

Federal Court: this decision answers whether: time of decision (TOD) criteria require decision-makers to consider up-to-the-minute information or whether there can be a gap between the point in time the information relates to and the TOD; in protection claims, the assessment of fear of harm can be temporally relative such as "the risks have reduced over time" or whether it must be an absolute assessment of the fear as at the TOD; decision-makers can "rely on the subjective experience of a limited class of people, of uncertain characteristics, to determine an objective level of safety" for an applicant.

Although this decision concerns a protection visa application, it discusses in broad terms the implications of treating a requirement as a time of decision (TOD) criterion. Arguably, the same principle would apply to non-protection applications.

The questions to the Federal Court (FCA) were as follows:

Question 1: Do time of decision (TOD) criteria require decision-makers to consider up-to-the-minute information or can there can be a gap between the point in time the information relates to and the TOD?

Question 2: If the answer to Question 1 is that there can be a time gap, how long can the gap be? For instance, can it be a gap of some years, depending on the circumstances?

Question 3: In assessing protection claims, can the assessment of fear of harm be temporally relative such as "the risks have reduced over time" or must it be an absolute assessment of the fear as at the TOD?

Question 4: If the answer to Question 3 is "absolute" and some aspects of a decision refer to relative terms, does that necessarily mean that the decision-maker adopted a relative, as opposed to absolute, test?

Question 5: In assessing protection claims, is it an error for decision-makers to "rely on the subjective experience of a limited class of people, of uncertain characteristics, to determine an objective level of safety" for an applicant?

Question 6: If the Tribunal made the error described in Question 5, was that error jurisdictional?

The FCA answered those questions as follows:

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