Case Law Updates

High Court. Can it be said that, "while [the respondent] may have been motivated to bring the current proceedings out of loyalty to [another person] or to avoid a possible forensic disadvantage to [that person], that does not mean that the proceedings were brought for an improper purpose"?

Federal Court (Full Court). Can it be said that acting under dictation might "occur where a decision-maker, tasked with a particular statutory function impermissibly merely adopts the decision of another body without undertaking the statutory task themselves"? If the Tribunal accepts or adopts a proposition of law, where that proposition itself was not erroneous, is the Tribunal acting under dictation?

Federal Court (Full Court). For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the Federal Circuit Court to be "scrutinised narrowly and with an eye for error"? Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?

Federal Court (Full Court). Can it be said that "a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1)"? Can it be said that, "where material such as the audio recording of a delegate interview is not given to the Authority, the question whether the Authority’s task has miscarried in a way which affects its jurisdiction is not decided by a technical focus on the words “possession or control” in [s 473CB(1)(c)], nor on evidence about why the material was not provided"?

Federal Court. The Minister purported on 2 occasions to refuse to grant a visa under s 501A. Both decisions were quashed and remitted for determination according to law. Could the same power be exercised a third time by reference to the same facts and circumstances? Does fact that the Minister considered Australia’s non-refoulement obligations in the exercise of his discretion under s 501A(3) mean that the same matters were not weighed in the balance in deciding the question of national interest under s 501A(3)(d)?

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

Federal Court (Full Court). May a person "engage in some religious practices of a particular faith without being a doctrinal adherent of that faith", such as Christianity? If so, can it be said that "a persecutor might nevertheless perceive the person to be a Christian, or perceive the person’s practices to be blasphemous, and may, accordingly, persecute the person for the reason of religion"?

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?

Federal Court. Due to s 500(6L), AAT had 84 days to decide under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa. At the time of AAT's decision, Applicant still had about 6 years of imprisonment to serve. Could AAT make a legally reasonable decision about the risk the Applicant would present to the community upon release 6 years in advance? Did AAT have "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?

Federal Court: Section 91R of the Migration Act 1958 (Cth), which is now repealed but still operative in some legacy cases, qualified some aspects of Article 1A(2) of the Refugees Convention. In WZAPN, the High Court held that "whether a risk to loss of liberty constitutes 'serious harm' for the purposes of s 91R(1)(b) requires a qualitative judgment". Here, the AAT found that an isolated abduction incident did not constitute a real chance of serious harm. Was that a non-qualitative finding, which thus misinterpreted s 91R?