Case Law Updates

Federal Court. Appellant claimed in his protection visa application that he was arbitrarily detained in Ethiopia at the airport and driven to prison by a person he believed was a private driver. He claimed: he begged for driver to call his wife and tell where he was being taken to; and that the driver did so. AAT invited Appellant to speculate on why driver would have made the call. AAT itself speculated driver would not have called Appellant's wife. Was it irrational for AAT to rely on a matter the Appellant was asked to speculate about as a basis to make adverse credibility findings against him on the factual elements of which he had first-hand knowledge? Is the "adjectival description of “extreme” ... a necessary element in a finding of illogicality or irrationality"? How high is the materiality threshold?

Federal Court (Full Court). Section s 43(2B) of the AAT Act provided that written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Is a failure to give reasons as required an error of law?

Federal Court. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?

Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?

Federal Court. Are there situations where a lack of resources may explain the period taken to make a decision under s 501BA(2) of the Migration Act 1958 (Cth), but where the decision still has not been made within a reasonable time?

Federal Court. In what circumstances can courts admit evidence adduced on judicial review? If the Tribunal is exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Migration Act 1958 (Cth) in respect of a decision under s 501CA(4) made by a delegate of the Minister, does s 43 of the AAT Act invest for that purpose the Tribunal with all of the powers, discretions and statutory obligations of the delegate?

Federal Court. Although the chapeaux in para 12(1) of Direction No 75 and para 10.1 of Direction No 65 refer to a decision whether to cancel a visa, are those paragraphs are about whether to refuse a visa? Although Direction No 75 is not binding on the Minister personally, is it reasonable to expect that the Minister, as a model litigant, would follow the procedure mandated for his surrogates in that direction? Does the prospect of indefinite detention no longer arise by reason of the insertion of s 197C? If so, does that mean that non-refoulement obligations will no longer be considered?

High Court. Delegate: interviewed Appellant in person and audio recorded it; was convinced, based on demeanour, that Appellant's evidence during interview was plausible and...

Federal Court. Can it be said that, "once a view is taken that a witness has been untruthful in one respect, it can and often does affect, consciously or subconsciously, the assessment of the witness’s remaining evidence, whether that other evidence was given before or after the supposedly untruthful evidence"?

Federal Court. In HZCP, FCAFC had held: "The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself". Can decision-makers question and explore matters surrounding the fundamental facts of the conviction and sentence?