Case Law Updates

Federal Court: 86-year-old UK national Appellant had visa mandatorily cancelled and applied for a protection visa, claiming he had several health conditions, including a major depressive disorder. He provided a medical letter stating that, if returned to the UK, he was at high risk of suicide. He claimed he was owed complementary protection under s 36(2)(aa) in that, as a necessary and foreseeable consequence of being removed, he would suffer significant harm by being arbitrarily deprived of his life pursuant to s 36(2A)(a). Is s 36(2A)(a) restricted to the risk of being deprived of life by a third party? If so and if the UK did not prevent his suicide, would that constitute arbitrary deprivation of life? If so, did the Tribunal made a jurisdictional error in not assessing what would be the UK’s response to the risk of suicide?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

Federal Court (Full Court). In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, was it necessary for the judicial review applicant to show that any errors were jurisdictional? In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, is there a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional?

Federal Court. Delegate collected photos and screenshots from Facebook accounts which were not included in, but were referred to, in its decision record. Appellant provided AAT with those reasons, but not the photos and screenshots. AAT was obliged under s 424A(1)(a) to give Appellant particulars of any information it considered would be the reason for affirming decision, except if Appellant gave that information for the purpose of the review application (s 424A(3)(b)). Can it be said that exception did not apply because, "although the photos and screenshots ... were not themselves exhibited in the Delegate’s Reasons, those reasons clearly referred to the substance of the Facebook information, and incorporated that information by reference to the departmental file"?

Federal Court (Full Court): 'Modern Australian society’s cultural awareness... should be at the very foundation of a decision which affects Aboriginal family and community'

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court. Can it be said that "the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?

Federal Court (Full Court). Section s 501CA(4)(a) provides that the Minister may revoke the mandatory cancellation of a visa if "the person makes representations in accordance with the invitation". Reg 2.52(2)(b) provides that representations must be "made ... within 28 days after the person is given the notice" of cancellation. Here, the notice said that representations must be "received within 28 days". Do the terms "in accordance with the invitation" allow the notice to determine what the legislation means? Do the terms "makes" and "made" mean "receives" and "received"?

Federal Court: The Applicant argued that: Mr Dutton was not constitutionally permitted to make a decision by reason of not being allowed to have sat in the Parliament; the Full Court's decision in Ibrahim should be followed; the Minister's comment on radio conveyed apprehended bias. The Minister argued that Ibrahim was wrongly decided or, alternatively, that it should be distinguished on the basis that, in Ibrahim, it was the Assistant Minister who made the impugned decision.

Federal Court. Can it be said that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"? Would a fair-minded observer "reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers"? Did the Tribunal effectively take the role of a contradictor?