Case Law Updates

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?

Federal Court. Can the fact that a decision record is comprehensive, thoughtful and fully footnoted strongly indicate that an item of evidence not referred to in it was overlooked?

Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?

Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?

Federal Court: AAT found: Kenyan authorities did not discriminate against people with mental illness, as they did not recognise those types of illness; rather, the authorities would, through a law of general application, take action against the Appellant on the basis of his (potentially criminal) erratic behaviour; thus, AAT found that he would not be discriminated against. Is a foreign law of general application capable of being implemented in a discriminatory manner? If so, can that amount to persecution? Does persecution require a subjective element of enmity or malignity?

Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?

Federal Court. In NZYQ, the High Court overruled its decision in Al-Kateb. Here, at the time of the Minister's decision, Al-Kateb was still considered good law. Did the Minister's reliance on Al-Kateb shield his decision from jurisdictional error, as it represented the law at the time? Or has NZYQ rather overruled Al-Kateb ab initio (i.e. with retrospective effect)?

Federal Court. Does the "fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer ... mean that the witness is not in a fit state to give evidence"? Is the Tribunal "entitled to expect that a legal representative for a party will assist it in avoiding error"? Is the Tribunal: "bound to receive evidence of little probative value"; entitled "to be selective about the quality and quantity of material it will consider in any case"?

Federal Court. Could r 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) only be satisfied if the nominator would not operate at a loss as a result of employing the nominee for 2 years? Was the salary of another nominee a prohibited consideration under r 5.19(3)(d)(i)? If an employment contract makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment, does that amount to a failure to satisfy r 5.19(3)(d)(ii)?

Federal Court: It is often said that jurisdictional errors made by an original decision-maker are always irrelevant to a merits review application, given that the Tribunal will make a decision de novo. However, that is not always the case, as this decision illustrates.