Case Law Updates

Federal Court (Full Court). In Katoa, the High Court held that, in determining whether to extend time under s 477A(2) of the Migration Act 1958 (Cth), the Federal Court was not limited to a reasonably impressionist level of assessment of the merits of the judicial review application. Does Katoa apply to s 477?

Federal Court: In MZABP, FCAFC had held that it is an error for FCCA to assess the full merits of a judicial review application made under s 476 for the purposes of s 477(2). Here, did FCCA make that error by saying that the application under s 476 "would be dismissed if it were a matter that I was dealing with on the merits"? If so, does the materiality test apply to court decisions? With respect: although the FCA has "not had any authority cited to [it] which demonstrates that the materiality principle" applies to court decisions, an earlier FCAFC decision had answered that question; we believe the FCA misinterpreted the materiality test; we disagree with the FCA's decision on whether the error in the present matter was material.

Yet another matter remitted by the AAT to the Department based on DFQ17. In DFQ17, the Full Court of the Federal Court held that a "late" Tribunal application was actually not late as the Department's notification letter did not clearly convey the deadline for a valid Tribunal application.

Federal Court: Saak held that decision-makers should be cautious before making adverse credibility findings based on the fact that a person who arrived by sea omitted a claim at an initial interview carried out just days after arrival and only made that claim later on as part of a protection visa application. Can SAAK operate much later, when the claim is first made in writing with the assistance of an RMA? Is SZTAL authority for the proposition that “no matter how poor the conditions [are] found to be” in the non-citizen's country's prisons, "they will be necessarily irrelevant to Australia’s complementary protection obligation"? Is AAT allowed to ignore claim that is not an applicant's prime focus or is contained in voluminous amount of material? Should AAT or courts consider evidence of content of foreign law? If so, can Wikipedia be used for that purpose?

Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?

Federal Circuit and Family Court. In reviewing a refusal to grant a student visa to an Indian national who sought to study cookery in Australia, the AAT said at the hearing: "I know that 99% of the cooks in India don’t come here and study". Was the AAT's decision affected by apprehended bias?

Federal Court: Section 430 requires AAT to provide written statement of reasons for Part 7-reviewable decisions. In Yusuf, it was held as follows about s 430: "The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material". Does the same principle apply to s 473EA, which requires the IAA to sets out its reasons for a decision?

Federal Court (Full Court). Does it follow from the High Court's decision in Plaintiff M1 that there is "an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand)"?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Federal Court (Full Court). Would exclusion based on s 5H(2)(b) result in exclusion based on 36(2C)(a)(ii) of the Migration Act 1958 (Cth) and vice-versa? If any part of the decision on the application for a protection visa relied upon either of those provisions, must review be sought in the General Division in order to be valid? Is the conferral of jurisdiction to review a decision 'relying on' either of those provisions a conferral of jurisdiction to review every aspect of that decision?