Case Law Updates

Federal Court (Full Court): Due to translation issues, the Appellant did not understand a question that was asked of him at an interview with a delegate. The delegate refused that application. The Appellant then put the IAA on notice of the translation issues. Was the IAA "required ... to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3)"? Did the interpreter's errors bring this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?

Federal Court. Was a delay of almost 4 years in deciding a protection visa application very lengthy? Is it reasonable for the Minister to consider s 501A for some period? Even though the Applicant's case was about the delay after the Tribunal remitted the matter to the Department, should this delay be considered in light of a previous delay? Is an absence of resources a justification for delay? Could the Minister further delay making a decision on the basis of a pending criminal trial?

Federal Court (Full Court). In BAL19, the FCA had decided that s 501 did not apply to protection visa applications. In KDSP, a 3-judge bench of the FCAFC overturned BAL19. Now, a 5-judge bench also overturned BAL19, although for slightly different reasons. Further, does s 501 apply to visa cancellations?

Federal Court (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

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"?

OMARA's decision summary: "the Agent was complicit in fraudulent conduct in the creation of companies that the Agent knew, or should have reasonably known, were not lawfully operating in Australia but were registered for the purposes of obtaining immigration outcomes for his clients for which they were not genuinely entitled".

Federal Court: Was the AAT obliged to call a psychologists for cross-examination? Was the AAT's reason illogical on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both [psychologists]' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?

Federal Court: AAT failed to disclose a document containing adverse information and its existence. That document was not protected by a non-disclosure certificate. Non-disclosure constituted a breach of procedural fairness. Was that breach material to the decision? Can it be inferred from s 359A and from the lack of reference in the Tribunal's decision record to that document that its non-disclosure was not material to the decision? Does the copying by an AAT member of the reasons of a prior member necessarily mean jurisdictional error?

Federal Court. Does the "fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer ... mean that the witness is not in a fit state to give evidence"? Is the Tribunal "entitled to expect that a legal representative for a party will assist it in avoiding error"? Is the Tribunal: "bound to receive evidence of little probative value"; entitled "to be selective about the quality and quantity of material it will consider in any case"?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...