Case Law Updates

Federal Court: The AAT's decision record included: "If his application before the Tribunal is unsuccessful, [the Applicant] would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention". As the Applicant was actually not subject to indefinite detention (see s 197C), did the use of the term "indefinite detention" in the decision record mean that the AAT made a decision on an incorrect understanding of the law?

Federal Court. In determining whether it was legally unreasonable for the Tribunal not to adjourn the review, was it relevant that: the Appellants were self-represented; there was no time sensitive aspect to the Tribunal’s review, as the visa and review applications had been on foot for a long time; the Tribunal advised the Appellants only a few weeks before the hearing that it would be considering a provision not considered by the delegate? Can a request for an adjournment be implicit, depending on the circumstances?

Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?

Federal Court (Full Court). Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm? Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?

Federal Court. In BAL19, FCA decided that s 501 did not apply to protection visa refusals. Does BAL19 also apply to s 501A refusals? Was the decision in BAL19 plainly wrong? Can the Minister "continue to administer the law on their own understanding of what the law is (or what it “should be”), and not as settled in BAL19, or to ... administer the law in a manner which they hope will be settled by the Full Court on appeal"? Subsection 476A(1) gave FCA jurisdiction in relation to migration decisions personally made by the Minister under s 501 and its analogues, but not under s 65. Minister argued that if he failed to make a decision within a reasonable time, that would be a decision under s 65, with the result that FCA did not have jurisdiction to order mandamus in relation to the failure to make a decision within a reasonable time. Did FCA have jurisdiction by reason of the terms "in relation to" in s 476A(1)?

Federal Court. Is a valid decision under s 501(3A) a precondition to the exercise of AAT's powers under s 501CA(4)? For the purpose of 501CA(4)(b), is AAT "confined to the narrow version of the character test in s 501(3A)(a)"? Does FCA have original jurisdiction to review a decision made under s 501(3A)? If not, does it have accrued or associated jurisdiction to review a decision made under s 501(3A) where it has original jurisdiction to review a decision made under s 501CA(4)? Is AAT allowed to take into account cl 9.4.1 of Direction 90 when considering the weight to be given to the expectations of the Australian community?

Federal Court (Full Court). May a person "engage in some religious practices of a particular faith without being a doctrinal adherent of that faith", such as Christianity? If so, can it be said that "a persecutor might nevertheless perceive the person to be a Christian, or perceive the person’s practices to be blasphemous, and may, accordingly, persecute the person for the reason of religion"?

The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"

Federal Court. If AAT receives and accepts medical evidence to the effect that a person is mentally unfit to attend a hearing but that person attends the hearing anyway, can AAT make adverse credibility findings based on oral submissions without meaningfully appreciating that that person's medical condition might have affected those submissions? Further, can it be legally unreasonable to refuse to allow a representative to appear and participate at a Tribunal hearing related to a Part 7-reviewable decision? We summarise the answer to those and many other questions.

High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?