Case Law Updates

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Federal Court (Full Court). "[C]an a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality"? Can the "significant harm" arise from the act of removal from Australia itself? If not, might rendition be an exception? If the Federal Circuit Court (FCCA) "considers any 'doubt' attaches to a decision of [the Federal Court]", is the FCCA bound to follow that decision"? Can the mental harm that would flow from the separation from relatives or self-harm constitute "significant harm"?

Federal Court. In determining whether the Tribunal afforded the Appellant a meaningful hearing under s 425 of the Migration Act 1958 (Cth), is there a distinction between a “bald statement of belief” on the part of a witness, which may not assist the Tribunal, "and the facts, matters and circumstances supporting that belief, which may be of considerable relevance and importance to determining if that belief has a proper foundation, and therefore should be accepted"?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Federal Court. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.

Federal Court: Appellant made invalid protection visa application containing only claim X and then made a valid protection visa application containing claims X and Y. The valid application was refused and the Appellant then applied to AAT for merits review. The AAT considered the fact that the invalid application did not contain claim Y as indicative that the Appellant's claims were fabricated and affirmed the delegate's decision. Subsection 47(3) of the Migration Act 1958 (Cth) provided (and still does) that "the Minister is not to consider an application that is not a valid application" and also applied to the AAT. Can it be said the the AAT's consideration of the claim contained in the valid application by reference to the material in the invalid application was prohibited by s 47(3)?

Federal Court. Appellant had to satisfy the following time of application criterion under cl 890.211 of Sch 2 to the Migration Regulations 1994 (Cth): "The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made". She also had to satisfy the following time of decision (TOD) criterion under cl 890.221: "The applicant continues to satisfy the criteria in clauses 890.211...". A delegate of the Minister refused to grant the visa and the Appellant applied to the Tribunal for merits review. Should the Tribunal determine the TOD by reference to the time of the delegate's decision? Or should it determine the TOD by reference to the time of its own decision?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?