Case Law Updates

Federal Court (Full Court). Are the words “other serious conduct” referred to in cl 8.1(1) of Direction 99 limited to criminal conduct or criminal convictions?

Federal Court. Was the adverse conclusion that the Applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction 90 one not obviously open on the known material, with the result that the Tribunal not putting the Applicant on notice of it amounted to a denial of procedural fairness?

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?

Federal Court: This decision illustrates why it might not be in a client's best interest to provide the Tribunal with a copy of the Department's decision record. Further, was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness or that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?

According to a landmark Federal Court (FCA) decision which we summarised in Jan 2020, the Tribunal could not consider issues and provisions not considered by the Department. Both the Minister and the non-citizen appealed that decision to the Full Court of the FCA (FCAFC). Was the FCA decision wrong? What are the principles by which the FCAFC might determine whether or not to proceed to hear an appeal where the substantive issues on appeal have become moot?

Federal Court. Does the Federal Court have jurisdiction to hear the application for judicial review insofar as it seeks: declarations that the Minister's decision that the United Nations Committee Against Torture's Interim Measures Request was 'unwarranted' is affected by jurisdictional error; a declaration that Australia owes non-refoulement obligations in relation to the Applicant?

Federal Court: a time of decision criterion for visa subclass 836 is that a medical certificate must state that the person receiving care has and will continue to have a need for direct assistance for at least 2 years. Does it mean that the certificate must be issued shortly before the time of decision? Could the certificate issued in 2010 "reasonably say anything about the degree of impairment of the sponsor 8 years later"? Does a medical certificate expire?

Federal Court. In BAL19, FCA decided that s 501 and PIC 4001 do not apply to protection visa applications. Can DHA delay making a decision on protection visa applications on the basis that it disagrees with BAL19 and is appealing that decision? Was FCA's decision in BAL19 plainly wrong? Does s 501(3A) apply to the cancellation of protection visas? Does s 501 operate independently from s 65? If the delay is not justified and BAL19 was not plainly wrong, should FCA issue a writ of mandamus, requiring DHA to consider according to law the protection visa application on the basis that s 501(1) does not empower the refusal of the application?

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?