Case Law Updates

Federal Court (Full Court): In DFQ17, the FCAFC held that a notification letter sent by DHA did not clearly convey the deadline for an AAT application and, as a result, a "late" merits review application was actually not late. Then, the FCA decision in Ali distinguished DFQ17 by holding that a notification letter sent via email and setting out a deadline of 21 calendar days did clearly convey the deadline. Now, the FCAFC has answered whether "the fact that a notification is sent by email is ... in itself sufficient to distinguish a case from DFQ17".

Federal Court. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Federal Court. Are the formative years confined to the period of a person's life when they were a child?

Federal Court. Minister sent an invalid invitation under s 501CA(3) to make representations seeking revocation of visa cancellation. Minister then sent an identical invalid invitation weeks later. Applicant made representations within the legislative timeframe calculated by reference to the date of the second, but not the first, invitation. Minister treated the representation as valid and made a decision under s 501CA(4), but challenged representation's validity before the Tribunal. Was the Tribunal allowed to determine whether it had jurisdiction by questioning whether the Minister's decision was valid?

Federal Court: There is no common law duty on administrative decision-makers to provide reasons for their decisions. Thus, in the absence of a statutory duty, those decision-makers are not required to provide reasons at all. However, if an administrative decision-maker chooses to provide reasons in circumstances where they are not obliged to do so, can a court on judicial review draw an inference from the fact that the decision record is silent about a particular consideration that such a consideration was not taken into account?

Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?

Federal Court. A letter notifying of a visa refusal stated: "As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted. You have appointed an authorised recipient and are taken to have received this letter at the end of the day it was transmitted to your authorised recipient." Is the letter defective, as there was no authorised recipient?

Federal Court. Does a judicial review applicant claiming illogicality in the decision of an administrative decision-maker need to show "extreme illogicality"? Can it be said that "inviting an applicant for a protection visa to speculate on the motivations, reasons or circumstances of a third party in the applicant’s country of nationality may be unlikely to produce probative material"?