Case Law Updates

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court. AAT was required to consider under s 501CA(4) whether to revoke the mandatory cancellation of the judicial review time extension Applicant's visa and to take into account the protection of the Australian community, as mandated by Direction 79. Para 14.1 of that direction required decision makers to consider the "impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour". Did the AAT engage in impermissible double counting when it considered the effect of the Applicant's offending both in the context of the protection of the Australian community and in the context of the impact on the victims of the Applicant's offending?

Federal Court. Will the Court only grant a stay of Tribunal proceedings when its supervisory jurisdiction is involved, and where there are shown to be “exceptional circumstances”?

Federal Court. Is the FCA's power to make findings of fact under s 44(7) of the AAT Act "related to the circumstances in which a court upon finding an error of law in the Tribunal’s decision might make an order in substitution for the Tribunal’s decision rather than remit the matter back to the Tribunal for re-determination according to law"? If so, is the FCA nonetheless not to usurp the fact-finding function of the Tribunal in determining whether error is shown in the Tribunal’s decision, because an appeal from a decision of the Tribunal is on a question of law?

Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?

Federal Court. Can it be said that, "where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category"?

Federal Court (Full Court). "[C]an a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality"? Can the "significant harm" arise from the act of removal from Australia itself? If not, might rendition be an exception? If the Federal Circuit Court (FCCA) "considers any 'doubt' attaches to a decision of [the Federal Court]", is the FCCA bound to follow that decision"? Can the mental harm that would flow from the separation from relatives or self-harm constitute "significant harm"?

Federal Court. By stating that Direction 110 required some actions to be taken, did the Assistant Minister proceed on the basis that he was personally required to apply the Direction, thereby making a jurisdictional error?