Case Law Updates

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?

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 administrative decision-makers "bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented"?

Federal Circuit Court. Can a document that itself is genuine meet the definition of a 'bogus document' by having been fraudulently obtained?

Federal Court. Can it be said that s 500(6H) of the Migration Act 1958 (Cth) "does not prevent an applicant who has not given two business days’ notice of proposed oral evidence prior to the commencement of the hearing, from relying upon that evidence as long as at least two business days’ notice is given prior to the resumption of the hearing following an adjournment"?

Federal Court: In the context of s 501BA(2), FCAFC had held in Ibrahim that: Minister conflated non-refoulement with the protection obligations under Migration Act; error was material because the internal relocation principle, which formed part of the non-refoulement obligations, no longer formed part of the protection obligations under the Act. In DGI19: FCA held Ibrahim applied to s 501CA(4); but Minister argued it should be distinguished on the basis that DGI19 did not argue to Minister the difference between the non-refoulement obligations and the protection obligations under the Act for the purposes of the relocation principle; FCA did not distinguish Ibrahim, holding that it was "not incumbent on an applicant proleptically to deal with the possibility of relocation". Was Omar (first instance) wrongly decided?

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. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

Federal Court. AAT set aside delegate's decision to refuse protection visa and granted Respondent a visa. Minister applied to FCA for judicial review, claiming AAT had no jurisdiction to grant the visa. Minister also made interlocutory application for matter to be expedited and kept Respondent in detention despite visa grant. Respondent made interlocutory application for his immediate release, on the basis that he was being unlawfully detained. Should FCA expedite the hearing of the Minister's judicial review application? Did FCA have jurisdiction to entertain the Respondent's interlocutory application for release? Did FCA have the power to issue writ of habeas corpus? Was Respondent unlawfully detained after Tribunal granted him a visa?