Case Law Updates

Federal Court: s 36(3) of Migration Act 1958 provides that Australia is taken not to have protection obligations if non-citizen "has not taken" all possible steps to enter & reside in any other country apart from Australia and the country where they fear persecution. AAT found that Indian Appellant had well-founded fear of persecution in India, but not Nepal. Appellant argued to AAT that, at the TOD of, he could only enter Nepal through India. Was AAT required to consider whether Appellant could or would prospectively: voluntarily return to Nepal; be removed from Australia to India? Or was AAT required to focus instead only on whether, by the TOD, Appellant had taken all possible steps to enter & reside in Nepal?

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. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court (Full Court). Can it be said that, although a court cannot scrutinise an administrative decision with "an eye keenly attuned to the perception of error", it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case"?

Federal Court. Can it be said that "interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings"? Would "an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to [the applicant's case] support the interrogatories" sought? If not, would an adjournment of the interlocutory application seeking interrogatory be appropriate?

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

Federal Court: Applicant: applied for protection visa; was interviewed; raised a number of claims, except sexual assault; before delegate made decision, claimed he suffered sexual assault. Delegate found the sexual assault claim was embellishment. Matter was referred to IAA under Pt 7AA of Migration Act 1958. IAA took a stronger view than delegate on embellishment and did not exercise power to obtain new information. Was the IAA's decision legally unreasonable? What is the meaning of "credible personal information" in s 473DD(b)(ii)?

The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality

Federal Court. Paragraph 116(1)(g) provided that the Minister may cancel a visa if "a prescribed ground for cancelling a visa applies to the holder". Reg 2.43(1)(p)(ii) prescribed the following ground: "in the case of the holder of a Subclass 050 ... or ... 051 ... visa - that the Minister is satisfied that the holder ... has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country". Does a material failure to comply with Direction 63, issued under s 499, lead to jurisdictional error?

Federal Court. Is an address given on an incoming passenger card given for the purpose of s 52(3A) of the Migration Act 1958 (Cth)? Was it open to the Minister to treat an address given for the purpose of s 52(3A) as the "person's last residential address ... known to the Minister" within the meaning of r 2.55(3)(c) of the Migration Regulations 1994 (Cth)?