Case Law Updates

Federal Court: In the context of s 501CA(4), AAT found it did not need to consider Applicant's claim that he feared harm if returned to Iraq as non-refoulement obligations would be assessed first if Applicant applied for protection visa, due to Direction 75. AAT wrote: "Although this Tribunal is inclined to believe that [the applicant] would be at some risk if returned to Iraq ..., it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access". Nevertheless, AAT found that such a claim weighed in favour of the Applicant. Did AAT make the error discussed by the FCAFC in Omar by not considering risk of harm outside the scope of non-refoulement obligations? Can it be said that such error was immaterial as AAT found there would be "some risk" of harm anyway? In other words, is the materiality test a binary exercise?

Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

Federal Court. Must the power in s 501BA of the Migration Act 1958 (Cth) be exercised within a reasonable period of time? May satisfaction of the preconditions to the exercise of the power in s 501BA arise by consideration of matters that have arisen after the s 501CA decision?

Federal Court. Should the determination of whether a representative’s email address was provided for the purpose of one matter but not another be determined objectively, without considering the subjective intention? Can an authorisation to receive documents in relation to a business monitoring survey constitute an authorisation to receive documents in relation to a NOICC?

Federal Court. When a visa applicant alleges fraud on the part of a representative in the lodgement of a visa application so as to establish that the application was invalid and thus avoid issues with s 48 and PIC 4020, what has to be proven and who bears the onus of proof?

Federal Court (Full Court). By reason of s 82(2) of the Migration Act 1958 (Cth), the Appellant's ETA ceased to be in effect upon the grant of a subclass 600 visa. When the latter visa ceased to be in effect, was the ETA reactivated by operation of law?

Federal Court: Was the AAT obliged to call a psychologists for cross-examination? Was the AAT's reason illogical on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both [psychologists]' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?

Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?