Case Law Updates

Federal Circuit Court: The risk of harm or persecution if removed from Australia 'was a matter to be weighed by the Tribunal in determining whether to affirm the' delegate's decision to cancel the visa

'There is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing'

Federal Court. Art 12(4) of the ICCPR read: "No one shall be arbitrarily deprived of the right to enter his own country". Judicial review applicant argued that Australia was his "own country" by reason of having lived in Australia since the age of 4 and that, in determining whether to revoke under s 501CA(4) the mandatory visa cancellation decision made under s 501(3A), Minister was obliged to put him on notice that he might make a decision which would arbitrarily deprive him of the right to enter (and remain) in Australia.

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: although legal unreasonableness is not amenable to fixed formulae, this decision contains an interesting description: 'A conclusion, whether stated definitively or arising as a matter of generalisation ... , that is inherently inconsistent with another conclusion (in the sense that at least one of them must be wrong) is one that is attended by irrationality or illogicality of the extreme kind to which the authorities refer'.

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

Federal Court. Did the requirement in Direction 110 to give “individual consideration” to the best interests of each child require that each of the matters identified in para 8.4(4) be considered in respect of each child?

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?

Federal Court. Does a judicial review applicant claiming illogicality in the decision of an administrative decision-maker need to show "extreme illogicality"? Can it be said that "inviting an applicant for a protection visa to speculate on the motivations, reasons or circumstances of a third party in the applicant’s country of nationality may be unlikely to produce probative material"?