Case Law Updates

Federal Court. Is it "appropriate to conclude from the text of s 501G(1), considered in context, that the purpose of the requirement expressed in s 501G(1) for a notice to be given is to be protective of the interests of the person affected by the relevant decision beyond requiring notification"? Do s 500(6A)-(6L) require the Minister to explain the consequences of those provisions?

Federal Court (Full Court). May a person "engage in some religious practices of a particular faith without being a doctrinal adherent of that faith", such as Christianity? If so, can it be said that "a persecutor might nevertheless perceive the person to be a Christian, or perceive the person’s practices to be blasphemous, and may, accordingly, persecute the person for the reason of religion"?

Federal Court: Although this case concerned a non-migration matter, it might be relevant to migration matters. Applicant applied to AAT for review of original decision. Applicant applied to AAT's Registrar to issue summonses. Registrar refused to do so and referred matter to an AAT member, who issued "Directions on Preliminary Issues" refusing the request to issue summonses. Did that direction constitute a decision under s 44(1) of the AAT Act, which would therefore be "appealable" to the FCA?

Federal Court: Was there an apprehension of bias by reason of same AAT member hearing both nomination refusal review and  corresponding 457 visa refusal review? Did Tribunal's finding that Appellant's evidence was not “persuasive or compelling” of itself amount to a finding that the Appellant was not a credible witness? Did Appellant, who was represented, waive apprehension of bias claim by not asking for the member to recuse herself? During appeal to FCA, it arose that the further nomination application had been refused. Did that mean that  apprehension of bias, if established, was not material? Did Isbester apply to this case? Was refusal to adjourn review legally unreasonable?

Federal Court (Full Court). Direction No 53 set out the factors decision-makers should take into account in determining whether a student visa satisfied the Genuine Temporary Entrant (GTE) requirement. Are decision-makers required to consider all of those factors and make findings about them in circumstances where the applicant does not place reliance on any of those factors? Does the same answer apply to the current direction, namely Direction No 69?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court (Full Court). DHA sent visa cancellation notice on 20 Sep 2018 via email, while Respondent was in prison. Notice was handed to him on 21 Sep 2018, but stated it was delivered by email. Was such defect immaterial, as AAT calculated timeframe by reference to the latter date? Was notice defective by not specifying decision was reviewable under Part 5? Can AAT application be lodged before notice is sent? If notice is defective, does it mean there is no deadline for AAT application? Must AAT consider application without application fee?