Case Law Updates

Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?

Federal Court. If the Minister personally makes a decision under s 501CA(4): is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations; must he give "reasons as to why the expectations of the Australian community should count against revocation"? Must s 501CA(4) decisions  be made within a reasonable period of time? May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

Federal Court (Full Court). For the purposes of assessing complementary protection criteria, s 36(2B)(a) required AAT to consider whether "it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". Is s 36(2B)(a) informed by, and does it give effect to, a principle akin to the principle of internal relocation? Did AAT misinterpret s 36(2B)(a) by using as a starting point its assessment that Appellant had two "home areas", rather than directing attention to the place where Appellant was likely to return to?

Federal Court. Can it be said that, as the visa was cancelled on the basis that the applicant failed the character test arising from the application of the objective standard that he has “a substantial criminal record” in s 501(6)(a), "the subjective standard referred to in paragraph 8.1.1(1)(b)(iii) does not and cannot apply"? Is what was said in an earlier judgment involving the same applicant and Minister "material" before the Tribunal on which it could base its findings?

Federal Court. If the parties to litigation agree on a principle, is that principle's precedential force diminished? Further, in Vaitaiki, Teoh was interpreted by: Burchett J as requiring decision-makers to take the best interests of children into account as a primary consideration if no notice to the contrary was given; Branson J as requiring decision-makers to treat those interests as a primary consideration. Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration? If the former: is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act; should the FCA adopt Burchett J's or Branson J's interpretation of Teoh?

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court: s 36(3) of Migration Act 1958 provides that Australia is taken not to have protection obligations if non-citizen "has not taken" all possible steps to enter & reside in any other country apart from Australia and the country where they fear persecution. AAT found that Indian Appellant had well-founded fear of persecution in India, but not Nepal. Appellant argued to AAT that, at the TOD of, he could only enter Nepal through India. Was AAT required to consider whether Appellant could or would prospectively: voluntarily return to Nepal; be removed from Australia to India? Or was AAT required to focus instead only on whether, by the TOD, Appellant had taken all possible steps to enter & reside in Nepal?

Federal Court (Full Court). 1st Appellant applied for protection visa and added her children, 2nd and 3rd Appellants. Until and including AAT hearing, children had not made their own protection claims. They all attended the hearing in person. Practitioner also attended, but over the telephone, as his flight was delayed. Children were neither heard nor asked to be heard. 1st Appellant told AAT during hearing her children did not have their own protection claims and practitioner did not intervene to correct her. AAT asked for children to leave hearing room while 1st Appellant gave evidence, which they did. Practitioner did not object to that, but made post-hearing submissions including children's own protection claims. Can it be said that lack of objection and intervention meant that procedural fairness obligation in s 425 was not breached? If so, does that imply practitioners have a right to do so?

Federal Court (Full Court): Minister was allowed to cancel a BVE under reg 2.43(1)(p)(ii) based on charges against the holder, despite the fact that those charges were laid before the BVE grant.

Federal Court. Was it impossible for the Applicant to demonstrate the testing of his rehabilitation in the community, as he had not been in the community, with the result that the finding about lack of testing in the community was illogical?