Case Law Updates

Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?

Federal Court (Full Court). Did representative authorise payment of AAT application fee whatever the fee would be? Can most of the fee be paid by the statutory deadline and the difference afterwards? Does the fee accompany the application if it is paid after the application is lodged, so long as paid before the deadline?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?

Federal Court. In circumstances where the Tribunal accepted that the applicant was suffering from a medical or psychological condition in relation to substance abuse and addiction that required clinical treatment and supervision, did it fail to complete the exercise of its jurisdiction, as para 9.2(1)(a) of Direction 99 require it to consider the applicant’s health issues relating to alcohol abuse and drug addiction, which it failed to do?

Federal Court (Full Court): In the context of s 501CA(4), was the Appellant's prohibition upon his ability to return to Australia by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) a legal or a practical consequence of a non-revocation decision? Was that consequence a mandatory relevant consideration? Does the process of statutory construction of the Migration Act "permit of some consequences being more immediate than others"? Does a decision made under cl 5001(c) lack "legal proximity" to decisions made under the Act? The FCAFC was divided on several issues.

Federal Court: In decision under s 501CA(4), AAT wrote: "The [Minister] has ... submitted that the duty to remove a person from Australia only arises if it is reasonably practical [sic] to do so. The Tribunal agrees with this submission. The period of detention is fixed until it is reasonably practicable to remove a person". Did AAT misinterpret ss 197C & 198? In regards to non-refoulement obligations, AAT referred only the “existence of the non-refoulement obligation” and to the fact that the Applicant was a person “to whom Australia has non-refoulement obligations”. Did AAT give "active consideration to the likely significant harms" that refoulement would entail, as mandated by Direction 65? Did AAT consider the prospect of indefinite detention?

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?

Federal Court. The Minister found that cancellation under s 501BA(2) was in the national interest, because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons convicted of the offences involved to remain in Australia. Was that finding irrational, as the Applicant was NZYQ affected and would thus remain in Australia anyway?

Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?