Case Law Updates

Federal Court. Does family violence include belittling, intimidating, frightening, or similar conduct directed to the person claiming to be the victim of domestic violence? Can it be said that, instead of being obliged to accept the evidence that was before her, the independent expert was required to make her own, independent assessment as to whether or not the appellant was a victim of relevant family violence?

Federal Court. Can it be said that "the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”" pursuant to s 5H(2)(a) of the Migration Act 1958 (Cth)? How to interpret Articles 22(1) and 25(3)(c)-(d) of the Rome Statute of the International Criminal Court, entered into force 1 July 2002?

Federal Court: AAT found: Kenyan authorities did not discriminate against people with mental illness, as they did not recognise those types of illness; rather, the authorities would, through a law of general application, take action against the Appellant on the basis of his (potentially criminal) erratic behaviour; thus, AAT found that he would not be discriminated against. Is a foreign law of general application capable of being implemented in a discriminatory manner? If so, can that amount to persecution? Does persecution require a subjective element of enmity or malignity?

According to the majority, jurisdictional error consists of a material breach of a condition of the exercise of a decision-making power. ‘Ordinarily... breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision'.

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. 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 (Full Court). Can it be said that, for para 9.2(1)(a) of Direction 90, "evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in [his home country]"?

Federal Court. Will habeas corpus lie where, although a person is not an unlawful non-citizen, an officer detains him/her on the basis of a reasonable suspicion that he/she is an unlawful non-citizen? Must the suspicion that a person is an unlawful non-citizen "be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances"?

Federal Court. Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"? Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?

High Court. Is a visa refusal by reason of ss 501 or 501A a decision under s 65? Is PIC 4001 "void for uncertainty because it used the expression "character test" without definition"? Are delegates "bound by a prior, internally recorded view" about whether visa criteria were met? Can a s 65 officer refer an application for a decision under s 501? Can a single decision under s 65 be segmented into various discrete decisions? Are the Minister's powers under ss 501(1) and 501A(2) "spent ... if a visa should have otherwise been granted under s 65, but has not been granted"? Did the Minister have jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal was invalid?