Case Law Updates

Federal Court (Full Court). Did representative authorise payment of AAT application fee whatever the fee would be? Can most of the fee be paid by the statutory deadline and the difference afterwards? Does the fee accompany the application if it is paid after the application is lodged, so long as paid before the deadline?

Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?

Federal Court (Full Court). Till 2014, Migration Act 1958 defined "refugee" by reference to the "Convention", under which a person was not a refugee if it would be reasonable to relocate to a place in their home country where they would not be persecuted (the relocation principle). Since 2014, the Act has defined a "refugee" as a person whose "real chance of persecution relates to all areas of a receiving country", among other things (s 5J(1)(c)). The FCAFC accepted that the relocation principle no longer applies to the definition of "refugee". However, does the reference in s 5J(1)(c) to all areas of a receiving country mean all areas where there is safe human habitation and to which safe access is lawfully possible?

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court (Full Court). Can it be said that, "when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order [under s 477(2) of the Migration Act 1958 (Cth)] to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless”?

Supreme Court of New South Wales (Court of Appeal). Does a court's failure to properly apply the relevant standard of proof amount to jurisdictional error?

Federal Court (Full Court). Section s 43(2B) of the AAT Act provided that written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Is a failure to give reasons as required an error of law?

Federal Court (Full Court). Do the High Court, the Federal Court and/or the Federal Circuit Court have jurisdiction to review decisions under s 501(3A) of the Migration Act 1958 (Cth)? Does XJLR support a conclusion that the FCA has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4)?

Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?

Federal Court. Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?