Does s 501 apply to protection visas? Is PIC 4001 valid for any visas?
Federal Court: Minister found Appellant satisfied s 36 and assessed whether he should refuse protection visa under s 501 by considering consequences of decision, finding that: if granted, potential harm to AU community was "so great that any likelihood that [such harm] would occur represents" unacceptable risk; if refused, Appellant would remain in indefinite detention while Minister considered exercising discretion to grant another visa. As a result, Minister reasoned he did not need to consider consequences of removal, such as persecution. Was that reasoning flawed? Further, can it be said that: "s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa"; PIC 4001 is inconsistent with ss 36(1C) or 501?
Can FCA make findings of fact on merits?
Federal Court. Is the FCA's power to make findings of fact under s 44(7) of the AAT Act "related to the circumstances in which a court upon finding an error of law in the Tribunal’s decision might make an order in substitution for the Tribunal’s decision rather than remit the matter back to the Tribunal for re-determination according to law"? If so, is the FCA nonetheless not to usurp the fact-finding function of the Tribunal in determining whether error is shown in the Tribunal’s decision, because an appeal from a decision of the Tribunal is on a question of law?
Section 128: is severity of risk a mandatory consideration?
Federal Court. Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128 of the Migration Act 1958 (Cth)?
Direction 65: AAT’s use of terms ‘secondary consideration’
The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"
Does FCCA have jurisdiction to review s 501(3A) decisions?
Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?
Meaning of “danger” in s 36(1C)(b)
Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?
TSS: ANZSCO not always necessary?
Federal Court: This decision is extremely important to subclass 482 (TSS) visa applicants. Although it concerned a subclass 457 visa application, it involved the interpretation of a critical provision that is identical to cl 482.212(3). According to this decision, ANZSCO was not the only guide that could be used to determine the "skills, qualifications and employment background" that were necessary for the applicant to perform the tasks of the nominated occupation. We explain how practitioners can use this decision to their clients' advantage.
Protection criteria to be assessed as if removal could occur?
Federal Court (Full Court). Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions? If there is no prospect of an applicant being removed to their country voluntarily or involuntarily, is the decision-maker nevertheless obliged to consider s 36(2)(a) or (aa) as if removal could occur?
AAT “receiving templates of reasons”?
Federal Court: Before appeal proceedings at FCA finalised, Callinan AC prepared a Report on the AAT, which included the following passage: "[the MRD Legal Services Section of the AAT has] prepared from time to time “templates” of determinations. I am told that at one stage, this section either volunteered to, or otherwise sought, and did in fact, “check” decisions by Members, on occasions requesting, if not almost insisting, upon changes beyond proofing changes". Appellants sought leave to issue a subpoena to MRD Legal Services Section to produce all documents exchanged with Member which could constitute legal advice. In support of leave application, Appellants' solicitor claimed Member's Linkedin profile revealed Member was legally qualified but "did not have a background in legal practice", thus supporting inference Member received legal advice. If Member received legal advice, did that vitiate AAT's decision?
Sub 820/801: what happens if DHA resends refusal letter
Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?