Appeal: can AAT direct a person to attend a medical examination?
Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?
Does s 473DD prohibit consideration of new claims?
Federal Court. Can it be said that, "just because section 473DD requires that a new claim or evidence must not be ‘considered’ does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed"? Does that question assume that s 473DD also prohibits the consideration of new claims, as opposed to only new evidence?
“Exceptional circumstances” a matter of law?
Federal Court. Minister revoked Applicant's citizenship, who applied under s 29(7) of AAT Act for time extension to apply for merits review. AAT wrote: "There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances". As a matter of law, do time extension applicants need to establish “truly exceptional circumstances”? Did AAT treat the need for exceptional circumstances as a matter of law?
Illogical to ignore 7 years of no offending in finding lack of rehabilitation?
Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?
Offer of compromise in JR cases: can rejection lead to adverse costs order?
Federal Court. The judicial review applicant rejected an offer of compromise by the Respondent in relation to costs which was as good as the result of the case. Did that rejection justify him paying costs incurred by the Respondent after the expiry of the offer?
Nathanson extended to misinterpretation of legislation?
Federal Court. In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". Is reasonable conjecture applicable in the context of an assessment of the materiality of errors in the form of misinterpretation of s 473DD of the Migration Act 1958 (Cth)? If so, is the standard of reasonable conjecture also undemanding in such a context?
Making a decision the same as providing reasons?
Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?
Irrational not to give weight to family ties?
Federal Court. Was it irrational or legally unreasonable for the Tribunal not to identify for the purpose of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) a rational or intelligible basis for not giving any weight to the applicant’s representations as to her family ties in favour of revocation of the mandatory cancellation of the applicant’s visa?
Can s 36(3) be satisfied despite very harsh conditions in a third country?
Federal Court. Can it be said that "the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3), unless the circumstances in subss (4), (5) or (5A) exist"? If so, is "an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment" precluded? If so, would a person "entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid" have the right to reside in the country?
Para 9.1(6) of Direction 90 interpreted
Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?