Ethnicity harm subsumed by non-refoulement harm?

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, the FCAFC echoed once again the writer's views expressed in several articles that the materiality test is not binary: the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant. Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?

AAT entitled to ignore material of which it has knowledge?

Federal Court: Appellant and his brother made separate protection visa applications with very similar claims, making reference to each other. Both applications were refused on the same day and each brother made a separate AAT application. The same Member heard both matters, the brother's hearing occurring a few weeks before the Appellant's. Was the AAT entitled to ignore material of which it had knowledge, namely the evidence given to it by the brother? Was the fact that the Appellant was "represented by a legally qualified" RMA relevant to that question?

Student visa (GTE): how we can use a court decision to our clients’ benefit

Federal Court: In 2018, we summarised the Federal Circuit Court (FCCA) decision in Singh that interpreted Direction 53, which is almost identical to Direction 69. Both directions provide guidance on how to assess the Genuine Temporary Entrant (GTE) criterion for student visa applications. We kept tracking Singh for our readers and we now summarise a decision of the Federal Court (FCA) delivered yesterday on whether Singh was correctly decided. We also discuss how practitioners can use this FCA decision to increase clients' prospects of satisfying the GTE criterion in student visa applications.

MARA: sound knowledge of legislation

MARA: "I am satisfied that the Former Agent deliberately misled [the client] on the lodgement process and on the progress of the visa application/s in order to conceal from [the client] the deficiencies in his working knowledge of migration legislation..."

Section 46A: procedural fairness & remedies

Federal Court (Full Court): We recently summarised a FCAFC decision which held that: the Minister had made a personal procedural decision to consider the exercise of his powers under s 46A; the exercise of the revocation power in s 46A(2C) was subject to procedural fairness. Now, the FCAFC delivered a further judgement, with remedies that gave effect to that decision. Both decisions could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application.

Must admin decision makers treat like cases alike?

Federal Court: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)? Can a failure to treat like cases in a like way constitute jurisdictional error? If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept the tender?

Department’s submission = reasons for decision?

Federal Court: Where the Minister is not obliged to, and does not, provide reasons for a decision: does a submission to the Minister provided by the Department necessarily constitute the Minister's reasons if the decision was recorded on the front page of the submission?; how can a court determine whether the Minister's decision was legally unreasonable?; can it be inferred that the Minister considered the Department's submission? Generally speaking, what are the matters an administrative decision-maker must take into account in exercising a discretion?

Can veracity of Department’s records be challenged?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Are decisions of international bodies relevant to domestic law?

Federal Court: "The High Court has warned against attaching particular significance to the [International Covenant on Civil and Political Rights - ICCPR] and its attendant jurisprudence in interpreting sections of the [Migration Act 1958 (Cth)] which incorporate ICCPR obligations". However, can decisions of international bodies interpreting Art 7 of the ICCPR "in the context of withheld or inadequate healthcare ... be of assistance in determining when an obligation might arise in the context of deportation"?

AAT made decision after the 84-day deadline

Federal Court: AAT mistakenly added 1 week to the 84-day deadline for making a decision (s 500(6L)) and neither Applicant nor Minister noted it at directions hearing. Minister's advocate noted the mistake only after the actual deadline and before the mistaken deadline and notified Tribunal, which nevertheless proceeded to provide reasons for affirming the original decision. Did the AAT make a decision? Did the Federal Court have jurisdiction for a judicial review application? If so, what remedies were available?

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