Case Law Updates

Federal Court. On 24 June 2020, FCA ordered Home Affairs Minister to decide a protection visa application by 3 July 2020 at noon. On 1 July 2020, Minister's lawyers sent an email saying that Minister was not available to personally make the decision within the timeframe and asking for variation of the order so that any other portfolio Minister could make the decision. On 2 July 2020, FCA accepted that request and ordered Home Affairs Minister to either personally make the decision or ensure it will be made by another portfolio Minister or a delegate by 3 July 2020 at noon. Applicant sought orders directing the institution of contempt proceedings in the event of non-compliance with the latest orders. If those orders are not complied with, could any explanation for non-compliance require an affidavit by the Minister personally and for the Minister to make himself available for cross-examination in contempt proceedings?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?

Federal Court. Can it be said that ss 362B(1A), (1B), (1C), (1D), (1E), (1F) and (1G) of the Migration Act 1958 (Cth) "are not an exhaustive statement of the steps the Tribunal might take in circumstances of non-appearance at a hearing as s 362B expressly preserves by s 362B(2) the power of the Tribunal to make a decision to reschedule the applicant’s appearance before it or to delay its decision on the review in order to enable the applicant to appear before it at a rescheduled hearing"?

High Court. Can it be said that it is "not reasonably open to a decision maker, when exercising their discretion to cancel a visa under s 116 of the [Migration Act 1958 (Cth)], to take into account a failure to respond to an NOICC [Notice of Intention to Consider Cancellation] in a manner adverse to a visa holder, as there is no legal requirement for a person to respond to such a notice"?

Federal Court. Even though the applicant had not been convicted in court, the Tribunal found that he had been 'convicted'. Did the Tribunal finding involve a misinterpretation of the law? Could the Tribunal have reasonably considered the view of the applicant's minor child to love the applicant to be irrelevant to the best interests of the child?

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court (Full Court). Was the appellant Minister, who elected to make a personal decision under s 501CA(4) of the Migration Act 1958 (Cth), required to personally consider the respondent's representations? Or could he merely rely on a Departmental summary of such representations? If he could not rely on a summary, did he consider those representations? Which party bore the onus, on appeal, on the question of whether the Minister considered those representations?

High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?