Case Law Updates

Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?

Federal Court (Full Court). Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm? Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?

Federal Court (Full Court): Appellant's licence was terminated, after which he applied to the (1st) AAT, which affirmed original decision after a hearing. FCCA remitted the matter to the (2nd) AAT, which also carried out a hearing. 2nd AAT was reconstituted by another Member (3rd AAT) and then affirmed Board's decision. Was 3rd AAT required to afford the Appellant a further hearing? Could any findings by 1st AAT bind the 3rd? Was 3rd AAT allowed to consider 1st AAT's hearing transcript? Could AAT authoritatively determine the limits of its own authority?

Federal Court (Full Court). The Minister found that the Appellant failed to recognise that he had "psychological sexual issues relating to children". Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"? If so, was the adjective "psychological" used by the Minister in its unscientific sense?

Federal Court. Can the power in s 501BA(2) of the Migration Act 1958 (Cth) only be exercised within a reasonable time after the original decision? If so, is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?

Federal Court: IAA affirmed decision to refuse Appellant a protection visa on the basis that he could relocate to Kabul: "I am ... not satisfied that there is a real risk of him facing significant harm ... in Kabul". Under s 36(2B)(a), "there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if ... it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". As per MZACX and MZZJY, in order for relocation to be reasonable, risk of harm in other place is relevant, but risk need not be as high as "real" and harm need not be as serious as "significant". Did IAA treat reasonableness of relocation as necessarily involving the same risk and level of harm as set out in s 36(2)(aa), namely "real" and "significant"?

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 (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?

Federal Court. Non-citizen won a judicial review application at FCCA and was awarded legal costs. As non-citizen was represented on a pro-bono basis (no win no fee), those costs would effectively be paid to his lawyers. However, Minister appealed FCCA's decision to FCA and applied for a stay order relating to that costs order. Should the court infer, based on the fact that the non-citizen was represented on a pro-bono basis and some other factors, that he would not have the money to pay the Minister's legal costs if the Minister is ultimately successful on appeal, in the absence of direct evidence regarding the non-citizen's financial position? If so, should that inference justify the grant of a stay order?

Federal Court. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?