Case Law Updates

Federal Court. Minister revoked Applicant's citizenship, who applied under s 29(7) of AAT Act for time extension to apply for merits review. AAT wrote: "There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances". As a matter of law, do time extension applicants need to establish “truly exceptional circumstances”? Did AAT treat the need for exceptional circumstances as a matter of law?

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. Did para 9.1(2) of Direction 90 "require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct"?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court. Was the Tribunal obliged to explain why certain conditions (if any) should be imposed for the purpose of cl 050.223 of Schedule 2 of the Migration Regulations 1994 (Cth), instead of merely listing such conditions in its reasons for decision? If so, was that obligation obviated if the visa applicant conceded to the Tribunal that those conditions should be imposed?

High Court. Is the ratio in the High Court's decision in SDCV that, "even where s 46(2) of the AAT Act prevents the Federal Court from providing an applicant with any means to respond to material subject to a certificate ... , it is not contrary to Ch III because it forms an inseverable part of an additional avenue for review that is beneficial (when compared to the other available avenues of review), and therefore causes no practical injustice"?

Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...

Federal Court: 86-year-old UK national Appellant had visa mandatorily cancelled and applied for a protection visa, claiming he had several health conditions, including a major depressive disorder. He provided a medical letter stating that, if returned to the UK, he was at high risk of suicide. He claimed he was owed complementary protection under s 36(2)(aa) in that, as a necessary and foreseeable consequence of being removed, he would suffer significant harm by being arbitrarily deprived of his life pursuant to s 36(2A)(a). Is s 36(2A)(a) restricted to the risk of being deprived of life by a third party? If so and if the UK did not prevent his suicide, would that constitute arbitrary deprivation of life? If so, did the Tribunal made a jurisdictional error in not assessing what would be the UK’s response to the risk of suicide?

Federal Court: Was the AAT obliged to call a psychologists for cross-examination? Was the AAT's reason illogical on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both [psychologists]' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?

High Court. Is the Minister required under ss 54(1), (2)(c), 55(1) or 56(1) to consider relevant information given or gotten at an interview? Is "compliance by the Secretary of the Department with the consequent procedural duty to give to the Authority specified categories of "review material" [under 473CB] affected by errors in the translation of words spoken during the protection interview"? Can IAA make a jurisdictional error if it relies on misinterpretation and does not invite applicant to an interview or does not exercise its powers to get and consider new information which might address the misinterpretation?