Case Law Updates

Federal Court. The Applicant was found to be owed protection, but had his protection visa application refused for character reasons. He was a person within the cohort affected by NZYQ, meaning that he could not be held in immigration detention while removal from Australia remained impracticable in the reasonably foreseeable future. As such, he was granted a BVR. Was the Tribunal required to compare the risk to the Australian community as between holding the BVR and a protection visa?

Federal Court (Full Court). Do the High Court, the Federal Court and/or the Federal Circuit Court have jurisdiction to review decisions under s 501(3A) of the Migration Act 1958 (Cth)? Does XJLR support a conclusion that the FCA has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4)?

Federal Court: AAT found that a forensic psychologist "was argumentative and defensive ... and did not present as an impartial witness". Although "it will usually be necessary for a decision maker to give reasons for an adverse credit finding", does the same principle apply to expert witnesses? Further, FCA held that the AAT's failure to take into account a claim about a consideration was not material because the Tribunal had already accorded that consideration "considerable weight" in favour of the Applicant.

Federal Court. Was the Applicant inhibited in his task of seeking judicial review within the 35-day statutory deadline, because the reasons for the decision of the Tribunal followed 21 days after the decision was made? Is it for the Court to set to one side a clearly expressed conclusion by the Tribunal on the basis that it may be a mistake?

Federal Court. In determining whether to set aside a decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of a visa, is the Tribunal confined to the representations to the Minister? In determining through reasonable conjecture whether the Tribunal’s error in failing to consider a representation was material to the outcome and thus jurisdictional, is the standard of reasonable conjecture equally onerous?

Federal Court. A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law? Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?

Federal Court. The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act? Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?

Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?