Case Law Updates

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

Federal Court: IAA affirmed decision to refuse Appellant a protection visa on the basis that he could relocate to Kabul: "I am ... not satisfied that there is a real risk of him facing significant harm ... in Kabul". Under s 36(2B)(a), "there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if ... it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". As per MZACX and MZZJY, in order for relocation to be reasonable, risk of harm in other place is relevant, but risk need not be as high as "real" and harm need not be as serious as "significant". Did IAA treat reasonableness of relocation as necessarily involving the same risk and level of harm as set out in s 36(2)(aa), namely "real" and "significant"?

Federal Court. Does the AAT Act "require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant"? Can it be said that "to conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case"?

Federal Court (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

Federal Court. Did s 500(6H) "preclude the Tribunal from considering information which is not presented by, or on behalf of an applicant, including information that arises from cross-examination or answers given in response to questions put by the Tribunal"? Does s 500(6H) have the effect that oral evidence, which may be given in support of a review applicant’s case cannot "depar[t] in a substantive way from the content of the written statements"?

Federal Court. If the Minister personally makes a decision under s 501CA(4): is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations; must he give "reasons as to why the expectations of the Australian community should count against revocation"? Must s 501CA(4) decisions  be made within a reasonable period of time? May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

Federal Court. In considering whether an applicant for visa subclass 309 (partner) was a de facto partner of the visa sponsor, was the Tribunal allowed to consider the best interests of the affected children or related issues or "any hardship that might be occasioned by refusal of the visa, be that to the visa applicant, the sponsor, or their children"?

Federal Court. Applicant could not be removed from Australia, due to effect of NZYQ. In the context of a refusal of a protection visa under s 501(1), Minister submitted to Tribunal that “that there were no third country removal options for the Applicant”. On judicial review, Applicant argued that was not true. Does Applicant have a proper basis to seek discovery of what information was available to the Minister concerning the impending third country reception arrangement with the Republic of Nauru at the time of the Tribunal hearing?

Federal Court. For the purpose of addressing the consideration in cl 6.3(4) of Direction 79, can it be said that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test and that there is a deemed expectation by the use of the preface “The Australian community expects”?

Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?