Case Law Updates

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?

Federal Court. For subclass 485, must the Australian study requirement be satisfied, at the latest, on the day before the application for the visa is made? Is the date of completion of a course for the purpose of the Regulations what the education provider considers it should be? Is a course completed for the purpose of the Regulations as soon as an academic supervisor has positively assessed each unit of study?

Federal Court (Full Court). Does s 476(1) of the Migration Act 1958 (Cth) confer on the Federal Circuit and Family Court (FCFCOA) jurisdiction to hear and determine all matters arising out of common facts, such as a claim for damages for false imprisonment, in which a writ of mandamus or an injunction is sought against an officer of the Commonwealth in relation to a migration decision?

Federal Court. Subsection 34(2) of the Australian Citizenship Act 2007 (Cth) provides that the Minister may revoke a citizenship if, among other things, the subparagraphs in s 34(2)(b) are satisfied, such as the person having been convicted of an offence under s 50 of that Act or having obtained citizenship as a result of migration-related fraud. Is the discretion under s 34(2) limited to considerations of the circumstances within s 34(2)(b)? Paragraph s 34(2)(c) requires the Minister to be "satisfied that it would be contrary to the public interest for the person to remain an Australian citizen". In applying s 34(2)(c), can decision-makers consider only what is "contrary to", rather than "in", the public interest?

Federal Court: IAA affirmed decision to refuse Appellant a protection visa on the basis that he could relocate to Kabul: "I am ... not satisfied that there is a real risk of him facing significant harm ... in Kabul". Under s 36(2B)(a), "there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if ... it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". As per MZACX and MZZJY, in order for relocation to be reasonable, risk of harm in other place is relevant, but risk need not be as high as "real" and harm need not be as serious as "significant". Did IAA treat reasonableness of relocation as necessarily involving the same risk and level of harm as set out in s 36(2)(aa), namely "real" and "significant"?

Federal Court (Full Court). For the purposes of assessing complementary protection criteria, s 36(2B)(a) required AAT to consider whether "it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". Is s 36(2B)(a) informed by, and does it give effect to, a principle akin to the principle of internal relocation? Did AAT misinterpret s 36(2B)(a) by using as a starting point its assessment that Appellant had two "home areas", rather than directing attention to the place where Appellant was likely to return to?

Federal Court (Full Court): ordinarily, a subclass 820 visa application will be decided first and the 801 second. However, decision makers can reverse that order in some circumstances; perhaps that means that a TSS visa can be refused before nomination is processed in some circumstances, thus denying review rights to visa applicants

Federal Court (Full Court). The Full Court discussed in detail whether single judge decisions of the Federal Court (whether in the original or appellate jurisdiction) bind Full Court decisions (whether in the original or appellate jurisdiction) and vice-versa. It also discussed whether Ali, Ibrahim and BCR16 were correctly decided and the effect of Direction 75.

Federal Court (Full Court). Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?