Case Law Updates

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

The AAT 'had the power to extend time and ought to have treated [the review application] as a proper or at least a constructive application for an extension of time'.

Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?

Federal Court (Full Court). In CWY20 and ENT19, the FCAFC held that it was legally unreasonable for the Minister not to consider the reputational consequences for Australia of breaching its non-refoulement obligations when assessing s 501A(2) of the Migration Act 1958 (Cth) and cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth), respectively. Are CWY20 and ENT19 legally distinguishable for decisions made under s 501(3)? Is there a tension in the High Court's decisions on materiality in MZAPC and Nathanson?

Federal Court (Full Court). Can it be said, based on a single judge FCA decision, that the "principles of legal unreasonableness, in the sense considered in Li, have no application in the review of a decision... as to the existence of certain facts that satisfy statutory criteria", but only to the review of a discretionary power? Summary of principles concerning review of: state of satisfaction under s 65 for illogicality and irrationality; adverse credibility findings. Can it be said that "the psychological reactions of a couple to their first sexual encounter are matters of common human experience"? Or do those reactions need to be supported by evidence such as psychological evidence? Can it be said that, "if two people give a different account of an event and the evidence of one is rejected, that does not provide a logical basis on which to reject the evidence of the other"?

Federal Court: In SZSSJ: personal details of SZSSJ were unintentionally disclosed on the DHA's website; DHA refused to disclose the full content of a KPMG report on the data breach, but referred SZSSJ to an ITOA with instructions to assume that information from him had been accessed by all persons from whom he feared persecution; HCA held that even if there was a denial of procedural fairness in not disclosing the full report, that was cured by the assumption. Was the AAT in this case obliged to make that assumption?

Federal Court: Due to s 500(6L), AAT had only 84 days to decide whether to affirm delegate's decision. Applicant asked for adjournment in order to obtain representation. AAT's refusal to adjourn was legally unreasonable. With respect, in answering whether that error was material, did the FCA echo what the writer had written in an article dated 5 Oct 2019: "is it not the case that it is not possible to rule out that the placing of even more weight to [a consideration] could have tipped the scales in favour of revocation?"

Can RMAs draft statutory declarations for clients or provide them with templates? If so, to what extent? Should an RMA "doubt the information provided by ... client/s, the witnesses or the Declarants or any documents that [the RMA] has witnessed”? Does the responsibility to provide correct information lie with the person making a declaration? If a client keeps a copy of the service agreement, but the RMA does not, is the RMA entitled to payments? If "the way [an RMA] has managed [his/her] practice has proven successful over the years", does that "absolve" the RMA of his/her recording keeping obligations? Can it be said that "assisting ... clients with completing their forms and preparing their statutory declaration along with the signing of the Form 956" are sufficient to comply with cl 2.8(a), according to which RMAs must confirm client's instructions in writing?

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?