Case Law Updates

Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?

Federal Court. The Applicant was an NZYQ-affected BVR holder. Was it "not necessarily irrational or illogical to consider the provisions of the Direction on the basis that cancellation of the applicant's Global Special Humanitarian visa would remove his entitlement to stay in Australia thereby requiring his removal, provided the Tribunal also separately and sufficiently brought to account the additional consideration relevant to the applicant, namely that, in all likelihood, he would remain in Australia under different visa arrangements"?

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?"

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court. Was cl 14.2(1)(b) of Direction 79 concerned with the effect of non-revocation, as opposed to revocation, of the cancellation of the non-citizen’s visa? Do cll 14.2 or cl 14.4(1) permit consideration only of the negative impacts on family members of removal of the non-citizen from Australia?

Federal Court (Full Court). In an "appeal" under s 44(1) of the AAT Act, does a misinterpretation of the law amount to an error only if it is material to the decision in question? If not, is the issue of the materiality of an error nevertheless relevant to whether relief should be refused in the exercise of the Court’s discretion? In exercising the residual discretion under s 34(2) Citizenship Act 2007 (Cth), was the Tribunal limited to considering conduct or matters which had resulted in convictions within the ambit of ss 34(2)(b)(i) to (iv)?

Federal Court. Is a child a party to migration judicial review proceedings only if a person is appointed their litigation representative?

Federal Court. Should the Court draw a Jones v Dunkel inference that the Applicant would not have been able to provide any further explanation as to the required extension of time within which to apply for judicial review that would assist him, despite the Applicant’s self-representation at the time he applied for an extension of time?

Federal Court. Does use of the word “means” in cl 4(1) of Direction 110 limit the definition of “family violence” to the two types of conduct as described, namely conduct that "coerces or controls a member of the person’s family" or "causes the family member to be fearful"?

Federal Court. Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention? Can it be said that, although any potential harm to the applicant if he is removed is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?