Case Law Updates

Federal Court. Are the words "before the Minister" in s 473DC(1)(a) of the Migration Act 1958 (Cth) confined to information that was before the Minister in an applicant's application? Or is information "before the Minister" so long as a delegate has "actual awareness" of the information, whether or not it formed part of the application?

Federal Court. Was the applicant's girlfriend, with whom he had been in a relationship for 1.5 years but only living together for 2-3 weeks and who was neither his spouse nor de facto partner, nevertheless his family member for the purpose of cl 8.2 of Direction 90?

Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?

Federal Court: In an application for merits review to which the 84-day deadline under s 500(6L) of the Migration Act 1958 (Cth) applies, should the reasons provided by the AAT be scrutinised less rigorously than would otherwise be the case? Was the Tribunal required to expressly put the Applicant on notice that it would consider the impact on victims that could flow from a decision to revoke the visa cancellation, pursuant to cl 14.4(1) of Direction 65? Did the AAT misinterpret cl 14.4(1)? Note: cl 14.4(1) of Direction 79 is identical to cl 14.4(1) of Direction 65.

Federal Court. Does “giving” a document within the meaning of r 5.02 require “actual delivery” to detainee or authorised person? The definition of "immigration detention" under s 5(1) includes "being held by, or on behalf of, an officer ... in a prison or remand centre of the Commonwealth, a State or a Territory". Does the mere fact that a State prison can be a place of immigration detention mean that a person there held is in immigration detention? Does the cancellation of a person's visa while that person is in criminal detention itself convert the criminal detention into immigration detention? Was the Applicant's last residential address known to the Minister the address where he was serving a prison sentence? Was BDS20 plainly wrong?

Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a  single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?

Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?

Federal Court. Can it be said that "any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest"? If so, does it follow that, "in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest"?

Federal Court. How should the 35 days referred to in s 477(1) of the Migration Act 1958 (Cth) be counted? Was the date of the "migration decision" the date when the Tribunal issued a corrigendum to its decision?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?