Case Law Updates

Federal Court (Full Court). Is an error in the form of legal unreasonableness material to the outcome, by definition?

Federal Court. Do the words used in s 196(4) "contemplate proceedings limited to judicial review of a visa cancellation decision"? Can it be said that "s 196(1) applies to a person who is in fact an unlawful non-citizen, or that reliance on s 196(4) assumes the person is, in fact, an unlawful non-citizen"? Is s 196(2) to the effect that "s 196(1) does not prevent the release from immigration detention of a person who is, as a matter of fact, a citizen or a lawful non-citizen"?

Federal Court. In the context of the assessment of a person's holding of a religious belief, or adherence to a particular religion for the purpose of the protection criteria, can it be said that "what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge"?

Federal Court. In order for the Minister to personally made a decision under s 501CA(4), must he be "briefed with an accurate and sufficient summary of the matters raised by the representations or ... undertake the consideration of the representations personally"? Can it be inferred from the form of the reasons (i.e. circling 1 of 3 options) that they were the means by which the Minister was briefed, with the result that "the matters that are known to the Minister are only those matters expressed in the reasons"?

Federal Circuit Court: the reference to 2 years under reg 1.15AA 'is not linked to “the assistance” but... to the “medical condition”'

Federal Court (Full Court): In considering a visa application, the Minister may get any information that he/she considers relevant. If the Minister gets such information, he/she must have regard to that information in deciding whether to grant a visa (s 56). The question to the 5 judges was whether, after getting about 800 pages of materials submitted by a non-citizen, the Minister was required to have regard to all of the relevant information.

Federal Court: Although this case concerned a non-migration matter, it might be relevant to migration matters. Applicant applied to AAT for review of original decision. Applicant applied to AAT's Registrar to issue summonses. Registrar refused to do so and referred matter to an AAT member, who issued "Directions on Preliminary Issues" refusing the request to issue summonses. Did that direction constitute a decision under s 44(1) of the AAT Act, which would therefore be "appealable" to the FCA?

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"?

Section 312A requires RMAs to notify DHA if they are giving someone immigration assistance. MARA found RMA: owned a few businesses and nominated some employees under those businesses; listed himself as an authorised recipient, instead of RMA, in some of the nomination applications. In determining whether a file note provided to the MARA in response to a s 308 notice was created retrospectively just for the purpose of a MARA investigation, can MARA look at the metadata of the file note?

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?