Case Law Updates

Federal Court. Could a mistranslation error leading to a finding that an applicant lacked credibility fall within the type of error referred to by the High Court in DVO16?

Federal Court (Full Court). Can it be said that "s 91X of the [Migration Act 1958 (Cth)] gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief"? We summarise the answer to this and several other questions.

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.

Federal Court. Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information” (i.e. information that is not capable of being believed)? If so, can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

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 (Full Court): Where a conviction or sentence is the foundation for the exercise of power by a decision-maker, can a challenge be made to the essential facts on which the conviction or sentence was based? If not, is the position different in the context of s 501CA(4)? Should AAT have considered "evidence that went beyond the essential facts underpinning his conviction and sentence"? Can a decision-maker, for the purposes of s 501CA(4), refuse to accept a non-citizen's challenge to a fact on which a sentence is based, on the one hand, and use that challenge against the non-citizen in the context of assessing remorse, on the other hand? Can the difference between sentence & conviction play any role in answering whether the facts on which they were based might be challenged? Subsequent FCA decision seems to have impliedly distinguished this decision.

Federal Court. In the context of cancellation under s 501(3) of the Migration Act 1958 (Cth), was the consequence brought about by cl 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) a mandatory relevant consideration, whether or not the Applicant made claims bearing on the latter provision?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?

Federal Court (Full Court). "Where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, [does it necessarily follow] that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information"? In determining a claim of apprehended bias where the Secretary provided the Tribunal with irrelevant, but highly prejudicial, material in the context of Part 7 of the Migration Act 1958 (Cth), what is the knowledge attributable to the hypothetical fair-minded lay observer?