Case Law Updates

Federal Court. Does the Federal Court have jurisdiction to hear the application for judicial review insofar as it seeks: declarations that the Minister's decision that the United Nations Committee Against Torture's Interim Measures Request was 'unwarranted' is affected by jurisdictional error; a declaration that Australia owes non-refoulement obligations in relation to the Applicant?

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)..." Does para 14.5 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

High Court. Does the practice in the Federal Court (FCA) of hearing an extension of time application together with argument on the substantive application require the FCA to avoid "conflating the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to ... what was necessary in the interests of the administration of justice"? If so, is the FCA limited to an impressionistic assessment of the merits of the substantive application?

Federal Court: IAA accepted Appellant's claims: "murder of his two brothers by the Taliban; the disappearance of a third brother; the appellant having fled the Taliban twice; and the appellant having been beaten and threatened by the Taliban over a period of years". It thus found that there was a real risk that Appellant would suffer significant harm if returned to Afghanistan: s 36(2)(aa). In assessing the reasonableness of relocation under s 36(2B): should the high standard of real risk of significant harm applied to s 36(2)(aa) be applied; although Appellant did not expressly claim that his "traumatic experiences" would be an obstacle to relocation, did that claim clearly arise from the materials before the IAA in that "it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche"?

Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?

Federal Court (Full Court). Can it be said that, "for the purposes of the discretion under s 10(2)(b)(ii) [of the ADJR Act], the availability of a full merits review on a de novo basis can constitute “adequate provision” for review and entitle the Court to refuse relief in its discretion"? If so, is the position "perhaps even stronger here where the appellant potentially had available to him two tiers of review in the AAT"?

Federal Court (Full Court): Appellant's licence was terminated, after which he applied to the (1st) AAT, which affirmed original decision after a hearing. FCCA remitted the matter to the (2nd) AAT, which also carried out a hearing. 2nd AAT was reconstituted by another Member (3rd AAT) and then affirmed Board's decision. Was 3rd AAT required to afford the Appellant a further hearing? Could any findings by 1st AAT bind the 3rd? Was 3rd AAT allowed to consider 1st AAT's hearing transcript? Could AAT authoritatively determine the limits of its own authority?

Federal Court. Was the adverse conclusion that the Applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction 90 one not obviously open on the known material, with the result that the Tribunal not putting the Applicant on notice of it amounted to a denial of procedural fairness?

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

Federal Court (Full Court). In determining whether a "claim" estoppel arises, can different grounds of jurisdictional error be seen as separate causes of action or claims arising out of the one decision? In determining whether Anshun estoppel arises, is the principal inquiry "whether the ground of review should have been brought forward in the first proceeding, in the sense that it was unreasonable for the appellant not to have done so"?