Case Law Updates

Federal Court (Full Court). Did representative authorise payment of AAT application fee whatever the fee would be? Can most of the fee be paid by the statutory deadline and the difference afterwards? Does the fee accompany the application if it is paid after the application is lodged, so long as paid before the deadline?

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court (Full Court). Did the Tribunal make jurisdictional error by not informing the non-citizen that it was proposing to make adverse and dispositive findings on matters that had been accepted in her favour before the delegate, even though she had declined an invitation by the Tribunal to attend a hearing?

Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?

Federal Court: 86-year-old UK national Appellant had visa mandatorily cancelled and applied for a protection visa, claiming he had several health conditions, including a major depressive disorder. He provided a medical letter stating that, if returned to the UK, he was at high risk of suicide. He claimed he was owed complementary protection under s 36(2)(aa) in that, as a necessary and foreseeable consequence of being removed, he would suffer significant harm by being arbitrarily deprived of his life pursuant to s 36(2A)(a). Is s 36(2A)(a) restricted to the risk of being deprived of life by a third party? If so and if the UK did not prevent his suicide, would that constitute arbitrary deprivation of life? If so, did the Tribunal made a jurisdictional error in not assessing what would be the UK’s response to the risk of suicide?

Federal Court: s 425 required AAT to invite Appellant to appear before it to "give evidence and present arguments relating to the issues arising in relation to the decision under review". AAT invited Appellant to a hearing in relation to the review of the delegate's decision to refuse him a protection visa. At the hearing, AAT put it to Appellant that there was a trend after 2013 of reduction of violence in the Appellant's country, based on some reports. Appellant had opportunity to comment. AAT's decision record relied on a subsequent report (2016 DFAT report) which confirmed that trend, but of which Appellant was not put on notice. Was the 2016 DFAT report an "issue" arising in relation to the decision under review or was it merely a factual matter going to that issue? Should AAT have convened a second hearing?

Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?

Federal Court. Can it be said that, "s 501(2) of the Act carries an implied temporal limitation, namely that once a NOICC is issued, the Minister must decide whether to cancel the visa within a reasonable time"?

Federal Court. Was the Applicant inhibited in his task of seeking judicial review within the 35-day statutory deadline, because the reasons for the decision of the Tribunal followed 21 days after the decision was made? Is it for the Court to set to one side a clearly expressed conclusion by the Tribunal on the basis that it may be a mistake?