Case Law Updates

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, has the FCAFC echoed the writer's views expressed in several articles that the materiality test is not binary but rather that the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant? Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?

Federal Court (Full Court). If a non-citizen makes representations under s 501CA(4)(a) within the period specified by the legislation and the Minister (or Tribunal) makes a decision under s 501CA(4)(b) on the merits of the case on the assumption that the representation is validly made, but the period fixed in the invitation issued under s 501CA(3)(b) is incorrect, is that decision nevertheless valid? In other words, will an error in the date fixed in the invitation justify the grant of remedies by a court only if the error is material?

Federal Court. When a single judge of the FCA disagrees with previous decisions of single judges of the FCA, is the question whether those previous decisions should be followed out of comity, rather than whether they are "plainly wrong"? Is a translation provided to the IAA, but not to a delegate, of a document that was before the delegate "new information" for the purpose of s 473DC of the Migration Act 1958 (Cth)?

Federal Court. Does the IAA need to "hold an interview merely because it was minded to reach a different credibility finding from a delegate"? Are the ratio of the FCAFC's decision in DPI17 and the High Court's decision in ABT17 "confined to an instance in which the delegate’s overturned finding had been overtly and significantly based on an express assessment by the delegate of the applicant’s demeanour"?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court (Full Court). Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4) of Migration Act 1958 (Cth). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

Federal Court (Full Court): If a case officer has received no delegation of authority to cancel a visa under s 109 of the Migration Act 1958 but does so anyway, does the Tribunal have jurisdiction to review that cancellation? If so, is the Tribunal's power limited to setting aside the original decision?

This decision illustrates how the OMARA can use metadata to check whether applications are genuine and the potential level of involvement of practitioners in the provision of "misleading or inaccurate statements"