Case Law Updates

Federal Court. Was there a need for the IAA's assessment of the credibility of a letter to coincide with that of the delegate? Entry interview form for unauthorised maritime arrivals asked: "1. Why did you leave your country of nationality (country of residence)? ... 7. Were there any armed groups, political groups, or religious groups operating in the area you lived?" Was Question 1 of the entry interview form asking about reasons for not wanting to return? Could Question 7 of the entry interview form be read as eliciting information about the receiving end of conduct? Is IAA required to give reasons for why it finds an applicant lacks credit?

Federal Court (Full Court). Cl 820.211(2)(c) required Appellant to be sponsored at TOA. Cl 820.221(4) required sponsorship to have been approved at TOD. Under reg 1.20(1), sponsor is a "person …who undertakes the obligations stated in sub-regulation (2)". Reg 1.20(2)(c) provided that the "sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation...". AAT adopted PAM3, which read that r 1.20 "requires officers to be satisfied that the sponsor can meet the financial needs of the applicant". AAT found Appellant's partner was not capable of fulfilling the undertaking under r 1.20 and thus was not a sponsor. Is the capacity to fulfil that undertaking relevant for the purposes of cl 820.221(4)?

Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?

Federal Court (Full Court). In re-exercising the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?

Full Court of Federal Court (FCAFC). Appellant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Appellant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Appellant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Appellant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Appellant argued to FCA that AAT could have made a decision before deadline and have given reasons later. FCA held AAT would have breached s 43(2) of the AAT Act, had it done so. Appellant appealed to FCAFC. With respect, does this decision stand in contrast to a previous FCAFC decision?

Federal Court. Rule in Browne v Dunn: "if you intend to impeach a witness you are bound, whilst he is in the [witness] box, to give him an opportunity of making any explanation which is open to him". Does that rule apply to Tribunal decisions? Further, according to the hearsay rule, out-of-court representations made by a person are not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representations, with exceptions. Does the hearsay rule apply to Tribunal decisions? We summarise the answer to these and several other questions.

Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

Federal Court. Should Thornton and Lesianawai be extended to s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Did the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer render his offending as irrelevant to the Tribunal's inquiry as to the protection of the Australian community under para 8.1.1(1) of Direction 99?

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court. Is the assessment of whether a ground of judicial review has sufficient merit to justify the grant of leave for it to be agitated for the first time on appeal to be conducted on a "reasonably impressionistic" basis?