Case Law Updates

Federal Court. The then self-represented Applicant made multiple attempts before the statutory deadline to lodge a judicial review (JR) application with the FCCA's Registry. After the last attempt, the Registry refused to accept the filing document, as it did not comply with the Federal Circuit Court Rules 2001 (Cth). Applicant eventually made a time extension application after the deadline. Before FCCA, interpreter was having difficulty understanding the Applicant. FCCA dismissed time extension application, saying nothing before it indicated it had received and refused JR application. Did the lack of a "simple inquiry of the Registry" result in the FCCA making a jurisdictional error? Was it necessary for JR application to substantially comply with the rules?

Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?

High Court. Do the verbs "give" and "invite" in s 501CA(3) require that regard be had to the circumstances of the recipient? Must the information and invitation be given by the Minister, or a delegate, personally? Did the timeframe of 28 days within which to make a revocation request under s 501CA(4) run from the date the invitation was sent via email to the immigration detention centre, instead of when it was handed to the respondent a day later? By incorrectly stating the 28 days by reference to the date of the email, was the invitation invalid? Can an analogy be drawn with DFQ17 ?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court: The AAT found that a protection visa applicant (the Appellant) was likely to be extorted by Pakistani authorities if removed to Pakistan, but that he could avoid persecution by bribing them. Did the AAT make a jurisdictional error by considering how the Appellant could (as opposed would) conduct himself if removed to Pakistan?

Federal Court (Full Court). Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law? Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at [47], the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Court. Para 8.3(4)(a)(i) of Direction 90 provided that "considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years". Does that compel the Tribunal to give "considerable weight"?