Case Law Updates

Federal Court. Section 91X of the Migration Act 1958 (Cth) prohibits publication by the FCCA, FCA or HCA of the name of any person who has applied for a protection visa, if the proceeding relates to that visa. Is s 91X constitutionally valid? If it is in the interests of justice, was it open to the FCA to order that an administratively allocated set of letters and numbers be replaced by a "human pseudonym"? If so, was it in those interests to so order so late in the appeal?

High Court. In Thornton, the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) precluded consideration of offences committed in Queensland by the respondent to that case when he was a child in the determination of whether to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). Does Thornton apply to offences committed by children in NSW?

Federal Court. If AAT receives and accepts medical evidence to the effect that a person is mentally unfit to attend a hearing but that person attends the hearing anyway, can AAT make adverse credibility findings based on oral submissions without meaningfully appreciating that that person's medical condition might have affected those submissions? Further, can it be legally unreasonable to refuse to allow a representative to appear and participate at a Tribunal hearing related to a Part 7-reviewable decision? We summarise the answer to those and many other questions.

Federal Court. The Applicant was found to be owed protection, but had his protection visa application refused for character reasons. He was a person within the cohort affected by NZYQ, meaning that he could not be held in immigration detention while removal from Australia remained impracticable in the reasonably foreseeable future. As such, he was granted a BVR. Was the Tribunal required to compare the risk to the Australian community as between holding the BVR and a protection visa?

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Federal Court. Should reasons as to whether to refer an ART decision to the ART's Guidance and Appeals Panel (GAP) usually not be given, for instance because, if a party appeals from that decision to the Court, "there may be some awkwardness in the [ART's] President making detailed findings on matters to be decided by the Court"?

Federal Court. Section 486E of the Migration Act 1958 (Cth) provides that a person must not "encourage" the commencement or continuation of migration litigation if the case "has no reasonable prospect of success". Section 486F provides that a court may make a costs order against a person who breached s 486E. Can it be said that a "lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense"?

Federal Court (Full Court). Could a conclusion that a non-citizen posed a risk of reoffending similar to other ordinary Australian residents rationally support a conclusion that the risk was unacceptable? Can it be said that "a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending"?

Federal Court. In DFQ17 and BMY18, Full Court of FCA held that, in order for a notification of visa refusal under s 66(2)(d) to be valid, it had to "clearly state" the deadline for applying for merits review. As a result, the "late" AAT applications in those cases were actually not late. In Ali, a single judge of the FCA distinguished DFQ17, holding that the notification in that case clearly stated the deadline for an AAT application. As the circumstances in Ali (i.e. email notification with deadline of 21 calendar days) reflect the vast majority of notifications sent by the Department, Ali had the practical effect of indicating that the error found in DFQ17 only applied to exceptional cases. Now, another single judge of the FCA held, although in obiter (*), that Ali does not sit comfortably with DFQ17 & BMY18 and that the latter decisions should be followed.

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?