Case Law Updates

Federal Court: The AAT received 2 non-disclosure certificates under s 375A, but only disclosed the existence of the first. The second certificate referred to the MRT, although the MRT had already amalgamated into the AAT. The appellant argue, among other things, that had he known about the existence of the second certificate, he could have argued: that it was invalid as it referred to the abolished MRT; that even if it were valid, he could have argued for a favourable discretion to disclose the content covered by it. Does a discretion really exist?

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: "The High Court has warned against attaching particular significance to the [International Covenant on Civil and Political Rights - ICCPR] and its attendant jurisprudence in interpreting sections of the [Migration Act 1958 (Cth)] which incorporate ICCPR obligations". However, can decisions of international bodies interpreting Art 7 of the ICCPR "in the context of withheld or inadequate healthcare ... be of assistance in determining when an obligation might arise in the context of deportation"?

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

Federal Court (Full Court). This decision confirms that, when a decision-maker is balancing various factors in determining whether a criterion is satisfied and finds that such a criterion is not satisfied, the fact that it found one of those factors to go in favour of satisfying the criterion does not mean that an error in the assessment of that factor was not material to the outcome of the decision. After all, more weight could have been attributed to that factor, had the error not been made, which could have led to the criterion being satisfied.

Federal Court. How should the 35 days referred to in s 477(1) of the Migration Act 1958 (Cth) be counted? Was the date of the "migration decision" the date when the Tribunal issued a corrigendum to its decision?

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

Federal Court. In order for the Minister to personally made a decision under s 501CA(4), must he be "briefed with an accurate and sufficient summary of the matters raised by the representations or ... undertake the consideration of the representations personally"? Can it be inferred from the form of the reasons (i.e. circling 1 of 3 options) that they were the means by which the Minister was briefed, with the result that "the matters that are known to the Minister are only those matters expressed in the reasons"?

Federal Court (Full Court). Cl 14.4(1) of Direction 79 required decision-makers to consider, under s 501CA(4), the "impact of a decision not to revoke" the mandatory cancellation of a visa on members of the Australian community, including victims and relatives of victims of the former visa holder. Should cl 14.4(1) be interpreted as referring to the impact of a decision to revoke, as opposed to the impact of a decision not to revoke?

The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality