Case Law Updates

If an RMA's website advertised that "your case will be represented and advocated only by [an RMA] throughout the entire application process", but a client was not dealt with by an RMA, was that advertisement, combined with other factors, misleading even if the non-RMA dealing with that client was located overseas?

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court: Cl 8(4) of Direction 65 provided: "Primary considerations should generally be given greater weight than the other considerations". AAT quoted that clause but eventually noted "the requirement that primary considerations should be given greater weight than the other considerations". Did AAT misinterpret cl 8(4)? Did AAT misinterpret cl 14.2(1)(a) by saying it was required to place less weight on how long the Applicant had resided in Australia "because of the limited positive contribution to the Australian community"? If so, was that error material? Is materiality a binary or balancing test? Despite Applicant's clearly articulated claim regarding the impact non-revocation would have on his family, pursuant to cl 14.2(1)(b), AAT made no finding in that regard. Should FCA infer from AAT's recitation of 14.2(1)(b) that it considered that claim? Did AAT misinterpret DHA's warning letter to Applicant?

Federal Court. Can it be said that ss 362B(1A), (1B), (1C), (1D), (1E), (1F) and (1G) of the Migration Act 1958 (Cth) "are not an exhaustive statement of the steps the Tribunal might take in circumstances of non-appearance at a hearing as s 362B expressly preserves by s 362B(2) the power of the Tribunal to make a decision to reschedule the applicant’s appearance before it or to delay its decision on the review in order to enable the applicant to appear before it at a rescheduled hearing"?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?

High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.

Federal Court (FCA). On 16 Jun 2020, we summarised a court decision where the Minister had said it would not comply with FCA orders as such orders were made "in error", as the Minister was of the view that FCA had wrongly decided BAL19 and was appealing that decision. In that 16 Jun decision, FCA said "there is no self-evident reason why even a Minister of the Crown should not comply with orders made by this Court and, if found guilty of contempt, liable to the same penalties as any other litigant". On 23 Jun 2020, KDSP overturned BAL19. Could FCA express any "confidence in this particular Minister making any decision “forthwith” ... or within a reasonably short period of time"?

Federal Court (Full Court). Can it be said that, "for the purposes of the discretion under s 10(2)(b)(ii) [of the ADJR Act], the availability of a full merits review on a de novo basis can constitute “adequate provision” for review and entitle the Court to refuse relief in its discretion"? If so, is the position "perhaps even stronger here where the appellant potentially had available to him two tiers of review in the AAT"?

Federal Court (Full Court). Is the question of whether a person qualifies as “a parent” under s 10B(1) of the Australian Citizenship Act 1948 (Cth) a question of fact to be determined by the Court? Can it be said that, "absent a biological parental relationship, parentage typically is a matter of intense commitment which involves acknowledging that other person as one’s own child"?

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?