Case Law Updates

Federal Court (Full Court). Was the Appellant denied procedural fairness in that "the Minister or the Minister’s delegate decided to exercise the cancellation power in s 501(3A) rather than 501(2) [of the Migration Act 1958 (Cth)] when the latter requires the person affected to be given an opportunity to be heard before the power is exercised whereas the former does not"?

Federal Court (Full Court): the AAT interpreted r 1.05A of the Migration Regulations 1994 (Cth) to provide that a non-citizen could only be "substantially reliant" on a single person in order to be "dependant" on that person. The Appellant argued to the Court that she could be "substantially reliant" both on the primary applicant and on a non-applicant.

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?

Federal Court: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)? Can a failure to treat like cases in a like way constitute jurisdictional error? If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept the tender?

Federal Court: "the information before the Tribunal ... contained some hearsay rather than firsthand information". Can administrative decision-makers accept hearsay?

MARA. Does the lodgement of skills assessment applications or EOIs constitute immigration assistance? Can RMAs be sanctioned for that type of work?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

Federal Court (Full Court): We recently summarised a FCAFC decision which held that: the Minister had made a personal procedural decision to consider the exercise of his powers under s 46A; the exercise of the revocation power in s 46A(2C) was subject to procedural fairness. Now, the FCAFC delivered a further judgement, with remedies that gave effect to that decision. Both decisions could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application.

Federal Court: IAA accepted Appellant's claims: "murder of his two brothers by the Taliban; the disappearance of a third brother; the appellant having fled the Taliban twice; and the appellant having been beaten and threatened by the Taliban over a period of years". It thus found that there was a real risk that Appellant would suffer significant harm if returned to Afghanistan: s 36(2)(aa). In assessing the reasonableness of relocation under s 36(2B): should the high standard of real risk of significant harm applied to s 36(2)(aa) be applied; although Appellant did not expressly claim that his "traumatic experiences" would be an obstacle to relocation, did that claim clearly arise from the materials before the IAA in that "it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche"?

Federal Court. Can it be said that, although the Tribunal would not have been entirely acting of its own initiative if it accepted K's invitation conveyed by the Applicant to speak to the Tribunal, the information that would have been given by K would not have been presented "in support of the [Applicant's] case", as it would rather have been presented as a result of the Tribunal eliciting information from K? In other words, was the giving of information by K precluded by s 500(6H) of the Migration Act 1958 (Cth)?