Case Law Updates

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court. The Minister found for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) that the Applicant's offending conduct was so serious that even a low risk of harm was unacceptable. Was it "permissible for the Minister to approach his fact-finding (or satisfaction forming) on the basis that any risk of serious harm to members of the Australian community was unacceptable"?

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 Circuit Court: the reference to 2 years under reg 1.15AA 'is not linked to “the assistance” but... to the “medical condition”'

Federal Court: IAA must not consider new info unless: exceptional circumstances exist (s 473DD(a)); and new info could not have been provided to DHA or is credible personal information not previously known (s 473DD(b)). May IAA's satisfaction of s 473DD(b) contribute to its satisfaction of s 473DD(a)? Must it so contribute? If it may, but not necessarily must, so contribute, should it at least usually so contribute? If so, may lack of reference to matters in s 473DD(b) in IAA's reasons lead to an inference that those matters were not considered in determining whether s 473DD(a) was satisfied?

Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?

Federal Court (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?

Federal Court (Full Court). If the decision-maker assesses cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) as not satisfied, is it required to consider whether cll 500.212(b) or (c) are satisfied?