Case Law Updates

Federal Court. If the Minister finds under s 501CA(4) that "the broader Australian community’s general expectations about non-citizens, as articulated in [Direction 90], apply in this case", but then, "without any explanation and before anything else ... immediately states that he “attributed this consideration significant weight against revocation of the cancellation of [the Applicant's] visa”", will he fail to intellectually engaged with the question of the weight to ascribe to those expectations?

Federal Court. Is s 196(4) of the Migration Act 1958 (Cth) limited "to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief)"?

Federal Court (Full Court): An error is only jurisdictional if material and only material if, had it not been made, the decision could have been different (HCA: Hossain). Materiality is a question of fact in respect of which judicial review applicants bear the onus of proof (HCA: SZMTA). It was incumbent on the appellant to demonstrate what would have occurred had the error not been made (FCAFC: Ibrahim). Differently constituted, the FCAFC disagreed with that aspect of Ibrahim, distinguished SZMTA and Hossain and reconciled the latter 2 cases with WZARH.

Federal Court. Was there a need for the IAA's assessment of the credibility of a letter to coincide with that of the delegate? Entry interview form for unauthorised maritime arrivals asked: "1. Why did you leave your country of nationality (country of residence)? ... 7. Were there any armed groups, political groups, or religious groups operating in the area you lived?" Was Question 1 of the entry interview form asking about reasons for not wanting to return? Could Question 7 of the entry interview form be read as eliciting information about the receiving end of conduct? Is IAA required to give reasons for why it finds an applicant lacks credit?

Federal Court (Full Court). If a decision-maker disbelieves a person on one matter, can it be said that that disbelief might be carried over to affect the decision-maker's disbelief in other matters? If so and if it is established that belief of a person's credibility on one matter was erroneously based, can it be said, in the context of assessing the materiality of an error, that that might convince the decision-maker of the need to revisit its conclusions on other matters?

Federal Court (Full Court). For the purposes of assessing complementary protection criteria, s 36(2B)(a) required AAT to consider whether "it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". Is s 36(2B)(a) informed by, and does it give effect to, a principle akin to the principle of internal relocation? Did AAT misinterpret s 36(2B)(a) by using as a starting point its assessment that Appellant had two "home areas", rather than directing attention to the place where Appellant was likely to return to?

Federal Court. Can it be said that, although the Tribunal would not have been entirely acting of its own initiative if it accepted K's invitation conveyed by the Applicant to speak to the Tribunal, the information that would have been given by K would not have been presented "in support of the [Applicant's] case", as it would rather have been presented as a result of the Tribunal eliciting information from K? In other words, was the giving of information by K precluded by s 500(6H) of the Migration Act 1958 (Cth)?

AAT: "[The agent] failed to properly supervise her [employee] and failed to put in place systems to protect clients from repeated wrongdoing by the Company’s employee".

According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.

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?