Case Law Updates

Federal Court. Do the submissions to the IAA alter its obligation to consider the review material, including the claims that were dealt with by the delegate? In determining whether a claim not expressly made to the IAA nevertheless clearly emerged from the materials before it, is it significant that the delegate considered the claim? Was it necessary for the Appellant to expressly repeat to the IAA the claim made to the delegate, in circumstances where there was no evidence that he had abandoned it?

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?

Federal Court (Full Court). Does the ratio decidendi of Teoh extend to relevant provisions of other international treaties, including Art 12(4) of the ICCPR? If so, is the concept of "legitimate expectation" discussed in Teoh subject to any contrary indication by the legislature or executive? If so, does the Migration Act 1958 (Cth) contain such a contrary indication by the legislative?

Federal Court (Full Court). In the High Court's decision in CNY17: unbeknown to Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c); however, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant; IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case"; IAA eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant; IAA's reasons stated that it "had regard to the material referred by the Secretary", but did not refer to additional material; HCA held the giving of additional material resulted in a reasonable apprehension of bias on IAA's part. Here, IAA expressly disavowed reliance on prejudicial material. Was that sufficient to avoid apprehension of bias?

Federal Court (Full Court). In BAL19, the FCA had decided that s 501 did not apply to protection visa applications. In KDSP, a 3-judge bench of the FCAFC overturned BAL19. Now, a 5-judge bench also overturned BAL19, although for slightly different reasons. Further, does s 501 apply to visa cancellations?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

Federal Circuit Court. Can a protection visa applicant "fear a particular type of harm for the purposes of the refugee convention and complementary protection without having ever experienced that particular type of harm in the past"? Is the IAA "obliged to consider a claim that is expressly and clearly made, even if there is no country information to support that claim"?

Federal Court. Will the Court only grant a stay of Tribunal proceedings when its supervisory jurisdiction is involved, and where there are shown to be “exceptional circumstances”?

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

Federal Court (Full Court). Does s 273(1) of the Migration Act 1958 (Cth) authorise the Commonwealth to refuse entry if a visitor insists on...