Case Law Updates

Federal Court: Applicant: applied for protection visa; was interviewed; raised a number of claims, except sexual assault; before delegate made decision, claimed he suffered sexual assault. Delegate found the sexual assault claim was embellishment. Matter was referred to IAA under Pt 7AA of Migration Act 1958. IAA took a stronger view than delegate on embellishment and did not exercise power to obtain new information. Was the IAA's decision legally unreasonable? What is the meaning of "credible personal information" in s 473DD(b)(ii)?

Federal Court. Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they can cause the type of harm contemplated by cl 9.1.2(2)(a) of Direction 79? Does cl 9.1.2(2)(a) call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?

High Court (single Justice). In determining whether to grant the plaintiff a time extension to file his judicial review application, does he disclose an arguable basis for relief in arguing that the delegate made an error in treating a Code 35 NPC as not satisfying the request?

Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.

Federal Court. Can it be said that, "by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation)"?

Federal Court. In DFQ17 and BMY18, Full Court of FCA held that, in order for a notification of visa refusal under s 66(2)(d) to be valid, it had to "clearly state" the deadline for applying for merits review. As a result, the "late" AAT applications in those cases were actually not late. In Ali, a single judge of the FCA distinguished DFQ17, holding that the notification in that case clearly stated the deadline for an AAT application. As the circumstances in Ali (i.e. email notification with deadline of 21 calendar days) reflect the vast majority of notifications sent by the Department, Ali had the practical effect of indicating that the error found in DFQ17 only applied to exceptional cases. Now, another single judge of the FCA held, although in obiter (*), that Ali does not sit comfortably with DFQ17 & BMY18 and that the latter decisions should be followed.

Federal Court: May ss 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth) overlap? Further, IAA refused to consider new info, saying: "The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection". Did IAA, in effect, say that "in no circumstances could evidence" relating to the siblings "have probative value when assessing the applicant’s claims for protection", thus amounting to jurisdictional error?

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

Federal Court. Does the rule in Browne and Dunn, being one of fairness, apply equally to a trial judge as to counsel?

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?