Home Case Law Updates

Case Law Updates

Unreasonable not to give IAA other material under s 473CB(1)(C)?

Federal Court: Secretary must give IAA "any other material that ... is considered by the Secretary ... to be relevant to the review": s 473CB(1)(C). On judicial review, should the Secretary's subjective view on whether other material should be given to the IAA be determinative? If so, is that a question of fact? If so, who bears the onus of proving it? Secretary required to give reasons for "decision" on relevance? If not, does that make it difficult to prove that Secretary's "decision" was legally reasonable?

Homelessness an irrelevant consideration?

Federal Court: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction 65, which makes the time a non-citizen "has spent contributing positively to the Australian community" a mandatory consideration? If not, may there be "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"? If so, was the present case one of those circumstances? Further, s 43(2B) of the AAT Act requires the AAT to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Does it follow that everything stated in the AAT's reasons is material to its decision?

Wikipedia, SAAK and SZTAL

Federal Court: Saak held that decision-makers should be cautious before making adverse credibility findings based on the fact that a person who arrived by sea omitted a claim at an initial interview carried out just days after arrival and only made that claim later on as part of a protection visa application. Can SAAK operate much later, when the claim is first made in writing with the assistance of an RMA? Is SZTAL authority for the proposition that “no matter how poor the conditions [are] found to be” in the non-citizen's country's prisons, "they will be necessarily irrelevant to Australia’s complementary protection obligation"? Is AAT allowed to ignore claim that is not an applicant's prime focus or is contained in voluminous amount of material? Should AAT or courts consider evidence of content of foreign law? If so, can Wikipedia be used for that purpose?

Excluded fast track review applicant: meaning of “a claim for protection”

Federal Court (Full Court). Under s 5 of the Migration Act, an "excluded fast track review applicant" includes a fast track applicant who "has made a claim for protection in a country other than Australia that was refused by that country". If a protection visa application is refused and the delegate forms the view that the applicant is an excluded fast track review applicant, that refusal is not subject to merits review. Can it be said that "the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia"?

Lost Australian citizenship by becoming PNG citizen?

Federal Court. Generally speaking, a person does not lose Australian citizenship by becoming a citizen of another country. However, there are exceptions. For instance, in some circumstances, a person who once was an Australian citizen is not an Australian citizen under the Citizenship Act 2007 (Cth) if they became a citizen of PNG by reason of the PNG Constitution. In this particular decision, did the Applicant become a PNG citizen by reason of the PNG Constitution and therefore lose his Australian citizenship?

Culturally adopted by different Aboriginal community?

Federal Court. Brennan J stated the tripartite test in Mabo (No 2) for determining a person's Aboriginality. That test was adopted in Love in the context of determining whether a person is an alien within the meaning of the Constitution. For the purposes of applying the 2nd and 3rd limbs of that test, can a person "be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically", in the absence of evidence of the laws and customs of that different society, "including particularly in relation to the existence or process of any mechanism of 'cultural adoption'"? Does the indigenous society or people have to "exist today for a biological descendent to be able to establish that he or she is not an alien"?

Could Federal Court decision discourage pro-bono work?

Federal Court. Non-citizen won a judicial review application at FCCA and was awarded legal costs. As non-citizen was represented on a pro-bono basis (no win no fee), those costs would effectively be paid to his lawyers. However, Minister appealed FCCA's decision to FCA and applied for a stay order relating to that costs order. Should the court infer, based on the fact that the non-citizen was represented on a pro-bono basis and some other factors, that he would not have the money to pay the Minister's legal costs if the Minister is ultimately successful on appeal, in the absence of direct evidence regarding the non-citizen's financial position? If so, should that inference justify the grant of a stay order?

Must AAT consider information considered by previous AAT?

Federal Court. If a decision-maker first states its conclusion and then talks about the evidence concerning that conclusion, does that indicate the decision-maker made the conclusion without considering that evidence? Does s 416 require AAT to refuse to consider the information that was before a previous AAT, or to have regard to the previous AAT's decision, or to take it to be correct? Can AAT adopt or accept the conclusion or the process of reasoning of a previous AAT in whole or in part?

13.1.2(1)(a): probability of harm?

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Can cl 14.2(1)(a) weigh against applicant?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?

Copyrighted Image

error: Content is protected !!