Case Law Updates

Federal Court. In circumstances where the Tribunal accepted that the applicant was suffering from a medical or psychological condition in relation to substance abuse and addiction that required clinical treatment and supervision, did it fail to complete the exercise of its jurisdiction, as para 9.2(1)(a) of Direction 99 require it to consider the applicant’s health issues relating to alcohol abuse and drug addiction, which it failed to do?

Federal Court. Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90? In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?

Federal Court. Can it be said that s 500(6J) of the Migration Act 1958 (Cth) "does not apply to information which is sought from the applicant by the Tribunal of its own initiative, and, instead, it applies only in respect of information provided by the applicant in support of his case in chief"?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court. In Tanielu, the Federal Court had held as follows: "[T]o determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future". Is there a prescribed way of evaluating the risk to the Australian community?

Federal Court: In the context of s 501CA(4), Applicant made detailed claims to AAT of how he would be subject to harm if returned to Somalia. AAT acknowledged those claims but did not expressly make findings on them. Does the FCAFC's decision in Omar stand for the proposition that "the use of expressions such as ‘I note’ and ‘I have considered’ may itself give rise to jurisdictional error"? Did AAT: fail to consider risk of harm outside the scope of non-refoulement obligations; and thus make error considered by FCAFC in Omar? Can it be said that such error was immaterial as AAT accepted Applicant may face torture and even death on return anyway? In other words, is the materiality test a binary exercise?

Federal Court. Appellant claimed in his protection visa application that he was arbitrarily detained in Ethiopia at the airport and driven to prison by a person he believed was a private driver. He claimed: he begged for driver to call his wife and tell where he was being taken to; and that the driver did so. AAT invited Appellant to speculate on why driver would have made the call. AAT itself speculated driver would not have called Appellant's wife. Was it irrational for AAT to rely on a matter the Appellant was asked to speculate about as a basis to make adverse credibility findings against him on the factual elements of which he had first-hand knowledge? Is the "adjectival description of “extreme” ... a necessary element in a finding of illogicality or irrationality"? How high is the materiality threshold?

Federal Court. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?