Case Law Updates

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

High Court: it was not in dispute that 'MARA may not take spent convictions into account in making [decisions under s 290(2) of the Migration Act 1958]', but the question was whether the AAT could; Discussion: are visa applicants really required to disclose convictions for which there was no sentence of imprisonment? Can the Minister take into account a visa applicant's spent conviction? Does the non-disclosure of a spent conviction really trigger PIC 4020?

Federal Court. Did the Tribunal err in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”? Did para 8.3(2) of Direction 110 direct attention to the impact on the non-citizen of the loss of any other ties to the Australian community?

Federal Court: this decision answers whether: time of decision (TOD) criteria require decision-makers to consider up-to-the-minute information or whether there can be a gap between the point in time the information relates to and the TOD; in protection claims, the assessment of fear of harm can be temporally relative such as "the risks have reduced over time" or whether it must be an absolute assessment of the fear as at the TOD; decision-makers can "rely on the subjective experience of a limited class of people, of uncertain characteristics, to determine an objective level of safety" for an applicant.

Full Court of Federal Court (FCAFC). Appellant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Appellant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Appellant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Appellant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Appellant argued to FCA that AAT could have made a decision before deadline and have given reasons later. FCA held AAT would have breached s 43(2) of the AAT Act, had it done so. Appellant appealed to FCAFC. With respect, does this decision stand in contrast to a previous FCAFC decision?

Federal Court. The applicant was notified that his visa was cancelled under s 501(1) of the Migration Act 1958 (Cth). About a month later, upon request, he received a second notification of the same cancellation, as he lost the first one. Did the second notification reset the deadline under s 500(6B) for the making of a valid Tribunal application?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court: AAT failed to disclose a document containing adverse information and its existence. That document was not protected by a non-disclosure certificate. Non-disclosure constituted a breach of procedural fairness. Was that breach material to the decision? Can it be inferred from s 359A and from the lack of reference in the Tribunal's decision record to that document that its non-disclosure was not material to the decision? Does the copying by an AAT member of the reasons of a prior member necessarily mean jurisdictional error?

Federal Court: Was the AAT obliged to call a psychologists for cross-examination? Was the AAT's reason illogical on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both [psychologists]' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?