Case Law Updates

Federal Court (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?

Federal Court: Appellant made invalid protection visa application containing only claim X and then made a valid protection visa application containing claims X and Y. The valid application was refused and the Appellant then applied to AAT for merits review. The AAT considered the fact that the invalid application did not contain claim Y as indicative that the Appellant's claims were fabricated and affirmed the delegate's decision. Subsection 47(3) of the Migration Act 1958 (Cth) provided (and still does) that "the Minister is not to consider an application that is not a valid application" and also applied to the AAT. Can it be said the the AAT's consideration of the claim contained in the valid application by reference to the material in the invalid application was prohibited by s 47(3)?

Federal Court. Are administrative decision-makers "bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented"?

Federal Court (Full Court). DHA sent visa cancellation notice on 20 Sep 2018 via email, while Respondent was in prison. Notice was handed to him on 21 Sep 2018, but stated it was delivered by email. Was such defect immaterial, as AAT calculated timeframe by reference to the latter date? Was notice defective by not specifying decision was reviewable under Part 5? Can AAT application be lodged before notice is sent? If notice is defective, does it mean there is no deadline for AAT application? Must AAT consider application without application fee?

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.

Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at [47], the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?

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). Para 8.1.1(1)(a)(ii) of Direction 99 required decision-makers to consider that crimes against women "are viewed very seriously by the Australian Government". Did para 8.1.1(1)(a)(ii) require the Tribunal to consider such crimes "very seriously"? May it be "necessary for the decision-maker to take account of facts alleged to underpin a claim that non-refoulement obligations are owed where those facts are relied upon as another basis for revocation of the cancellation decision"?

High Court. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid because it is not supported by a head of Commonwealth legislative power or because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?