Case Law Updates

Federal Court. Section 477(1) of the Migration Act 1958 (Cth) provided that an application for judicial review "must be made to the court within 35 days of the date of the migration decision". Was it "necessary that an application has been made, accepted for filing and has become part of the records of the court before it is an ‘application … made to the court’ for the purposes of the time stipulated in s 477(1)"?

Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?

Federal Court: In Appellant S395, HCA had held that Tribunal made an error by "focusing on an assumption about how the risk of persecution might be avoided" if S395 changed behaviour by not living openly as homosexual. Appellant in the present case stopped believing in Islam and became agnostic, after which he was discreet about his agnostic views and applied for protection. The principal reason for being discreet was that he saw no reason to propagate his views. Another reason was that his mother had "asked him to be careful about speaking out about his ... views". Was it open to the IAA to find that, given Appellant's choice not to proselytise his agnosticism, he did not have a well-founded fear of persecution?

Federal Court. Applicant was an unauthorised maritime arrival (UMA) and thus s 46A barred. In July 2017, Minister made determination that bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. When July 2017 Determination was made, Applicant's mother satisfied criteria (a) to (c). In Sep 2019, Applicant applied for SHEV, but application was considered invalid by DHA, as criterion (c) was no longer satisfied. Was that criterion to be satisfied by reference to July 2017 or the time of the SHEV application? Alternatively, should procedural fairness have applied to an assessment carried out for the purposes of a possible exercise of the Minister's discretion to lift the bar?

Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?

Federal Court: The AAT found that a protection visa applicant (the Appellant) was likely to be extorted by Pakistani authorities if removed to Pakistan, but that he could avoid persecution by bribing them. Did the AAT make a jurisdictional error by considering how the Appellant could (as opposed would) conduct himself if removed to Pakistan?

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.

Federal Court: the applicant's last email address provided to the Minister for the purposes of receiving documents was the one provided by the AAT

Federal Court. In determining whether to set aside a decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of a visa, is the Tribunal confined to the representations to the Minister? In determining through reasonable conjecture whether the Tribunal’s error in failing to consider a representation was material to the outcome and thus jurisdictional, is the standard of reasonable conjecture equally onerous?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?