Case Law Updates

Federal Court. Does the "gravity of the obligation upon the [IAA] to make a determination about whether Australia’s protection obligations w[ere] engaged" inform the determination of whether the IAA's power under s 473DD was exercised legally reasonably? Was it "open to the [IAA] to have regard to the inherent implausibility of the new information when considered in light of other information already before it for the purpose of determining whether it constitutes “credible personal information”within the meaning of s 473DD(b)(ii)"?

Federal Court. Applicant could not be removed from Australia, due to effect of NZYQ. In the context of a refusal of a protection visa under s 501(1), Minister submitted to Tribunal that “that there were no third country removal options for the Applicant”. On judicial review, Applicant argued that was not true. Does Applicant have a proper basis to seek discovery of what information was available to the Minister concerning the impending third country reception arrangement with the Republic of Nauru at the time of the Tribunal hearing?

Federal Court. Is the fact that an applicant is self-represented before the Tribunal a relevant circumstance which impacts the question of the fairness of the procedure adopted by the Tribunal?

OMARA: [All expenses incurred for the [subclass 187] nomination application are the responsibility of the sponsor and cannot be transferred to the visa applicant"... "I am satisfied that the Agent’s text message conversation with [the complainant] was related to the facilitation of payments intended to be provided to the employer by the visa applicant for a nominated position. It is an offence under sections 245AR and 245AS of the Act to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event".

High Court. Should statutory provisions be interpreted, so far as possible, to be consistent with international law, particularly where a provision seeks to give effect to matters of international law? Is the primary object of statutory construction to "construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute"?

Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?

Federal Court. Can it be said that "s 417 was exclusively intended to deal with decisions made under s 415 and that s 501J would not be engaged"? Can it be said that "a decision of the IAA was not intended to constitute a “decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa” (s 501J(2)) despite the IAA being “established within” the AAT (s 473JA)"?

Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?

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?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?