Case Law Updates

Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?

Federal Court. Did Direction 90 preclude Tribunal from considering a claim relating to extent of impediments if removed, as the claim fell outside the considerations set out in para 9.2(1)? Was the Tribunal expected to discuss whether its finding that removal from Australia was likely to result in hardship of itself was or formed part of “another reason” to revoke the visa cancellation pursuant to s 501CA(4)(b) of the Migration Act 1958 (Cth)? If so and the Tribunal did not discuss the effect of that finding, was the standard of reasonable conjecture for establishing materiality undemanding?

Federal Court. Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect? Is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?

Federal Court. Did para 9.4(1) of Direction 99 apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company? If so, did the Tribunal misinterpret para 9.4(1) in circumstances where the Applicant was self-employed?

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

High Court. Can it be said that a non‑citizen who does not have a visa that is in effect is not liable to detention under s 189(1) of the Migration Act 1958 (Cth) if they are not an alien? Can it be said that, "what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time"? In other words, can it be said that what constitutes reasonable grounds cannot be invalid ab initio?

Federal Court. Combined effect of ss 360(2)(c) and (3) is that an applicant is not entitled to appear before AAT if s 359 applies to the applicant. Subsection 359C(1) applies if a person is invited under s 359 to give information and does not do so within the deadline. Section 363A provides that AAT has no power to permit a person to do a thing if a provision states that the person is not entitled to do that thing, unless a provision "expressly provides otherwise". Does s 363 "expressly [provide] otherwise" by giving AAT the power to "take evidence on oath or affirmation" or to "summon a person to appear"?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Federal Circuit Court. Can a protection visa applicant "fear a particular type of harm for the purposes of the refugee convention and complementary protection without having ever experienced that particular type of harm in the past"? Is the IAA "obliged to consider a claim that is expressly and clearly made, even if there is no country information to support that claim"?

Federal Court. Does FCA have jurisdiction to review a delegate's decision to refuse under s 501CA(4) to revoke the mandatory cancellation of a visa made under s 501(3A)? Can the self-represented Applicant's notice of appeal from the Minister's decision be treated, in substance, as: a notice of appeal from the Tribunal's decision; including an application for a time extension under s 477A(2)(a)? How should the FCA approach poorly-cast grounds of judicial review? Is the Tribunal required to conduct hearings in person?