Case Law Updates

Federal Court. Is there a "lack of utility in seeking to erect some rigid distinction between so-called “claims” and so-called “evidence in support of claims”"? Can it be said that "the making of a written statement under s 368(1) is not “posterior” to making a decision" and that, rather, "the effect of s 368(6) is that a decision by the Tribunal is made “by” the making of a written statement"?

Federal Court (Full Court). One of the judges of the Full Court had appeared as the Commonwealth Director of Public Prosecutions in a conviction appeal on a point of law involving the non-citizen in question. The non-citizen's representative applied for that judge to recuse himself from hearing the appeal from an FCA decision dismissing a judicial review application.

Federal Court. If a decision-maker first states its conclusion and then talks about the evidence concerning that conclusion, does that indicate the decision-maker made the conclusion without considering that evidence? Does s 416 require AAT to refuse to consider the information that was before a previous AAT, or to have regard to the previous AAT's decision, or to take it to be correct? Can AAT adopt or accept the conclusion or the process of reasoning of a previous AAT in whole or in part?

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

A guidance decision indicates how the AAT (and possibly the Department) will interpret the transitional provisions for nominations made before 18 March 2018 where no corresponding subclass 457 visa application was made.

Federal Court: Was there an apprehension of bias by reason of same AAT member hearing both nomination refusal review and  corresponding 457 visa refusal review? Did Tribunal's finding that Appellant's evidence was not “persuasive or compelling” of itself amount to a finding that the Appellant was not a credible witness? Did Appellant, who was represented, waive apprehension of bias claim by not asking for the member to recuse herself? During appeal to FCA, it arose that the further nomination application had been refused. Did that mean that  apprehension of bias, if established, was not material? Did Isbester apply to this case? Was refusal to adjourn review legally unreasonable?

Federal Court: the Appellant made a Tribunal application but mistakenly answered in the application form that he held a refugee visa, with the result that the AAT's online system did not ask for payment of the application fee. That fee was only paid after the timeframe for making a valid application. The AAT recognised the mistake was understandable given how its online system was designed, but nevertheless found it had no jurisdiction. Was the review application 'accompanied by the prescribed fee'?

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

Federal Court. "In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place"?

Federal Court. In deciding under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant's visa, the Minister found that "Australia has a low tolerance of criminal conduct for people…who have been participating in, and contributing to, the community only for a short period". Should that finding "be understood as a concrete factual finding reflective of some impossible synthesis or amalgamation of the views held collectively by the Australian community"?