Case Law Updates

High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?

Federal Court: In Appellant S395, HCA had held that Tribunal made an error by "focusing on an assumption about how the risk of persecution might be avoided" if S395 changed behaviour by not living openly as homosexual. Appellant in the present case stopped believing in Islam and became agnostic, after which he was discreet about his agnostic views and applied for protection. The principal reason for being discreet was that he saw no reason to propagate his views. Another reason was that his mother had "asked him to be careful about speaking out about his ... views". Was it open to the IAA to find that, given Appellant's choice not to proselytise his agnosticism, he did not have a well-founded fear of persecution?

Federal Court. In the context of the assessment of a person's holding of a religious belief, or adherence to a particular religion for the purpose of the protection criteria, can it be said that "what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge"?

Federal Court (Full Court). Is the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender a relevant vulnerability for the purposes of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of Direction 90?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court. Can it be said that s 500(6H) of the Migration Act 1958 (Cth) "does not prevent an applicant who has not given two business days’ notice of proposed oral evidence prior to the commencement of the hearing, from relying upon that evidence as long as at least two business days’ notice is given prior to the resumption of the hearing following an adjournment"?

Federal Court (Full Court): "Notwithstanding provisions in Pt 7AA of the Migration Act 1958 (Cth)", was the Immigration Assessment Authority "obliged by natural justice ... requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing"?

Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?

Federal Court. Were the tests in ss 34(2)(c) and 34(2) of the Australian Citizenship Act 2007 (Cth) retrospective only, with the assessment of risk of reoffending being of little or no relevance? In such tests, is it generally permissible for decision-makers "to have regard to such deterrence as a factor in the protection of the integrity of the naturalisation process, provided that it is not associated with a substantial purpose of pursuing retribution for or denunciation of the specific conduct engaged in by the person whose citizenship is revoked"?

Federal Court (Full Court): Are MOCs allowed to calculate what constitutes "significant costs" under PIC 4007(1)(c)(ii)? Does the degree with which MOCs are required to describe the particularity of the "form or level" of a condition "depend upon the extent to which there is diversity in the experience for those with the particular type of condition"? Who bears the onus of proving that degree on judicial review? Are MOCs' opinions binding for the purposes of waiver? If not, are they at least relevant for those purposes? Can a decision be vitiated with jurisdictional error for having relied on a MOC opinion based on outdated information? If so, must there be a "real indication in the material that the condition ... was changing" in order for the information to be outdated? Does this decision resolve the Ibrahim / Nguyen tension?