Case Law Updates

Federal Court (Full Court). Did representative authorise payment of AAT application fee whatever the fee would be? Can most of the fee be paid by the statutory deadline and the difference afterwards? Does the fee accompany the application if it is paid after the application is lodged, so long as paid before the deadline?

Federal Court (Full Court). Was the Appellant denied procedural fairness in that "the Minister or the Minister’s delegate decided to exercise the cancellation power in s 501(3A) rather than 501(2) [of the Migration Act 1958 (Cth)] when the latter requires the person affected to be given an opportunity to be heard before the power is exercised whereas the former does not"?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Federal Court. Is the question of indefinite detention a relevant consideration in the exercise of the task under s 36 of the Migration Act 1958 (Cth)?

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 (Full Court): This decision indirectly prompts the question of whether and how it possible to avoid, in some circumstances, the restraint placed on the IAA on receiving "new information". Did the Secretary breach s 473CB(1)(c) "simply on the basis that [some documents] were in the Department’s possession or control and were not considered for relevance by the Secretary"? If not, does s 473CB(1)(c) only require the Secretary to consider documents of which he/she is aware? If not, should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control"?

Federal Court. Can the Tribunal determine for itself that it will not comply with a court order until it is known whether such an order is overturned by a higher court?

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 (FCA). If the FCA has jurisdiction to determine a claim for damages for false imprisonment and habeas corpus on the basis that the Respondent failed to remove the Applicant from Australia as mandated by s 198, does 476A exclude the FCA's jurisdiction to entertain the Applicant’s claims for injunctive relief requiring the Respondent to discharge its duty under s 198 or to declare that the Respondent failed to comply with that duty? Can the FCA issue a peremptory writ of mandamus?

Federal Court (Full Court). If a non-citizen makes representations under s 501CA(4)(a) within the period specified by the legislation and the Minister (or Tribunal) makes a decision under s 501CA(4)(b) on the merits of the case on the assumption that the representation is validly made, but the period fixed in the invitation issued under s 501CA(3)(b) is incorrect, is that decision nevertheless valid? In other words, will an error in the date fixed in the invitation justify the grant of remedies by a court only if the error is material?