Case Law Updates

Federal Court. For the purpose of the term "violent crimes" in Direction 110, is there "no inherent or invariable mental state required on the part of a perpetrator before conduct will be regarded as violent", meaning that the term "refers to the application (or threatened application) of physical force contrary to law"?

Federal Court (Full Court). Section 116(1)(e) called for the consideration of future possibilities which proceeded by drawing inferences from known facts and "reasonable conjecture within the parameters set by the historical facts". To these considerations should the following ones be added as legitimate bases for the assessment process: "common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department"?

Federal Court. Can it be said that the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"? Should the proposed interrogatory be administered?

Federal Court: Appellant and his brother made separate protection visa applications with very similar claims, making reference to each other. Both applications were refused on the same day and each brother made a separate AAT application. The same Member heard both matters, the brother's hearing occurring a few weeks before the Appellant's. Was the AAT entitled to ignore material of which it had knowledge, namely the evidence given to it by the brother? Was the fact that the Appellant was "represented by a legally qualified" RMA relevant to that question?

High Court: Although this decision concerned criminal law, it is arguably relevant to migration matters as it provides a summary of modern principles of statutory interpretation.

Federal Court: the respondent pleaded guilty to recklessly causing injuries to his child, which led to the refusal of his visa application; the AAT accepted the respondent's argument that he had only pleaded guilty because he thought that his child would otherwise be taken away from him; the Minister applied for judicial review...

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. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?

Federal Court. Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?

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?