Case Law Updates

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

Federal Court (Full Court). Can disbelief of an applicant or witness on one point subconsciously carry over to affect the decision-maker's disbelief of the same person on other points?

Federal Court (Full Court). Can it be said in the context of s 501CA(4) that "there is no foundation for the submission that [the administrative decision-maker] erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made"?

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.

Federal Court. In the context of s 36(1C)(b) of the Migration Act 1958 (Cth), is the state of an applicant's mental health now and into the future a matter which is only to be counted to the extent that it favours the applicant?

Federal Court. Could the Tribunal act under dictation by the decision of a previous Tribunal or give automatic effect to it? Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?

Federal Circuit Court. Did the Tribunal have a discretion to hold a hearing by telephone? If so, must that discretion be exercised reasonably? If so, what are the factors relevant to determining whether the exercise was reasonable?

Federal Court (Full Court). Section 501(5) provided that the power in s 501(3) of the Migration Act 1958 (Cth) could only be exercised by the Minister personally. Can it be said that s 501(5) allows a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but does not allow the decision-maker to determine not to consider information which the affected person provided prior to the decision being made?

OMARA: "The Agent claimed that he had experienced technical difficulties when lodging" a visa application for a complainant through ImmiAccount. To what extent does OMARA have access to ImmiAccount records? For instance, does it have access to records indicating when a draft application was created or saved? Further, can a client who has not paid any fees or signed an agreement make a complaint?

Federal Court. In the context of s 501CA(4), AAT said to self-represented Applicant at 1st hearing: "But what you can’t say, and what is not standing up to any sort of scrutiny, is that these police reports are not to be accepted, because Ms [L] be a little bit - or a lot - mentally unwell. If that were the case, the police wouldn’t have made the reports". At the end of 2nd hearing, Applicant was asked whether he wished to disagree with the police reports, but he answered in the negative. Did 1st hearing have the effect of directing Applicant that he could not present his case, thus constituting a denial of procedural fairness (PF)? Or did the opportunity to challenge the reports at the 2nd hearing cure any denial of PF that might have occurred at the 1st hearing?