Urgent injunction application

Federal Court: Minister cancelled Appellant's visa and detained him. Appellant applied to FCA for extension of time to file application seeking judicial review of cancellation decision. FCA dismissed that application on 18 Dec 2019 and delivered ex tempore reasons. DHA was going to remove Appellant on 7 Jan 2020. On 6 Jan 2020, self-represented Appellant: filed late appeal of the FCA's decision (presumably to FCAFC); did not apply for an extension of time to appeal; and also applied for an urgent injunction to restrain his removal. By the date of the decision on the injunction application, 6 Jan 2020, FCA still had not published its reasons nor formally entered its order. Was injunction granted? Injunction application was decided by a different single judge of the Federal Court, not the FCAFC.

What levels of risk and harm are necessary for s 36(2B)(a)?

Federal Court: IAA affirmed decision to refuse Appellant a protection visa on the basis that he could relocate to Kabul: "I am ... not satisfied that there is a real risk of him facing significant harm ... in Kabul". Under s 36(2B)(a), "there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if ... it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". As per MZACX and MZZJY, in order for relocation to be reasonable, risk of harm in other place is relevant, but risk need not be as high as "real" and harm need not be as serious as "significant". Did IAA treat reasonableness of relocation as necessarily involving the same risk and level of harm as set out in s 36(2)(aa), namely "real" and "significant"?

What factors are relevant to s 473DD(a)?

Federal Court (Full Court): s 473DD provides that IAA must not consider new information unless certain preconditions are satisfied. But does that provision expressly or impliedly empower IAA to consider new information? Can it be said that "the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the [IAA] in deciding whether 'exceptional circumstances' exist", pursuant to s 473DD(a)? What factors is IAA "required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD"? Can the "matters concerning the substance or merits of the new information" sometimes be relevant for the purposes of s 473DD(a)? Is IAA "required to take into account or have regard to the matters advanced by the applicant as establishing either" ss 473DD(b)(i) or (ii)?

Does s 501CA(3) concern a decision? Is capacity relevant? McCulloch ignored?

Federal Court (Full Court): In Chung, FCA held that visa refusal notification under s 66 was no decision for the purpose of s 476. That led FCA to hold in BYN18 that a s 501CA(3)(a) notice was no decision for that purpose. Was BYN18 wrongly decided? If so, could Chung be revisited? In SZQDZ, FCAFC held that decision of an IMR was not a “migration decision” for the purpose of ss 476 / 477. HCA then held in SZSSJ that an ITOA was a “migration decision” for that purpose. Did SZSSJ impliedly overrule SZQDZ, as FCA held in EKU17? Is obligation under s 501CA(3) discharged if non-citizen does not have capacity to understand notification & invitation purportedly issued under it? Are there implications to or from DFQ17? With respect, FCAFC seems to have ignored the existence of McCulloch, which had already answered one of the above questions on which the Federal Court is now divided 2:2.

Does s 501 apply to protection visas? Is PIC 4001 valid for any visas?

Federal Court: Minister found Appellant satisfied s 36 and assessed whether he should refuse protection visa under s 501 by considering consequences of decision, finding that: if granted, potential harm to AU community was "so great that any likelihood that [such harm] would occur represents" unacceptable risk; if refused, Appellant would remain in indefinite detention while Minister considered exercising discretion to grant another visa. As a result, Minister reasoned he did not need to consider consequences of removal, such as persecution. Was that reasoning flawed? Further, can it be said that: "s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa"; PIC 4001 is inconsistent with ss 36(1C) or 501?

Was a decision to refuse to issue summonses “appealable”?

Federal Court: Although this case concerned a non-migration matter, it might be relevant to migration matters. Applicant applied to AAT for review of original decision. Applicant applied to AAT's Registrar to issue summonses. Registrar refused to do so and referred matter to an AAT member, who issued "Directions on Preliminary Issues" refusing the request to issue summonses. Did that direction constitute a decision under s 44(1) of the AAT Act, which would therefore be "appealable" to the FCA?

“illogical and irrational to reject the evidence”?

Federal Court: Appellant gave different accounts of his protection claims in his screening interview and later as part of protection visa application. Appellant explained that mental health issues were the reason for those different accounts and gave IAA letters from an accredited mental health social worker who had treated him, for the purpose of corroborating his explanation. IAA disbelieved his explanation and went on to say that those letters did not "overcome the significant concerns and adverse findings the Authority made about the ... appellant’s claims and evidence". Was it "illogical and irrational to reject the evidence [from mental health social worker] because it is inconsistent with a conclusion already reached with regard to the very matter that the evidence was relevant to casting light on"?

Protection claim based on suicide risk?

Federal Court: 86-year-old UK national Appellant had visa mandatorily cancelled and applied for a protection visa, claiming he had several health conditions, including a major depressive disorder. He provided a medical letter stating that, if returned to the UK, he was at high risk of suicide. He claimed he was owed complementary protection under s 36(2)(aa) in that, as a necessary and foreseeable consequence of being removed, he would suffer significant harm by being arbitrarily deprived of his life pursuant to s 36(2A)(a). Is s 36(2A)(a) restricted to the risk of being deprived of life by a third party? If so and if the UK did not prevent his suicide, would that constitute arbitrary deprivation of life? If so, did the Tribunal made a jurisdictional error in not assessing what would be the UK’s response to the risk of suicide?

Was non-adjournment an error?

Federal Court: Applicant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Applicant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Applicant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Applicant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Did AAT make a jurisdictional error? With respect, it appears this FCA decision is contradicted by previous decisions of the Full Court and High Court.

MARA: important decision

Can RMAs draft statutory declarations for clients or provide them with templates? If so, to what extent? Should an RMA "doubt the information provided by ... client/s, the witnesses or the Declarants or any documents that [the RMA] has witnessed”? Does the responsibility to provide correct information lie with the person making a declaration? If a client keeps a copy of the service agreement, but the RMA does not, is the RMA entitled to payments? If "the way [an RMA] has managed [his/her] practice has proven successful over the years", does that "absolve" the RMA of his/her recording keeping obligations? Can it be said that "assisting ... clients with completing their forms and preparing their statutory declaration along with the signing of the Form 956" are sufficient to comply with cl 2.8(a), according to which RMAs must confirm client's instructions in writing?

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