Case Law Updates

Federal Court: In assessing complementary protection claims, the existence of an element of intentionality in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" requires subjective intention, which is not the case where prison conditions are the result of a lack of resources in a receiving country: SZTAL. Applying SZTAL, FCA had held in AJI16 that "denial or unavailability of healthcare in a receiving country will only engage s 36(2A) where it is in some way personal to the person being returned". Does that mean that "the fact that a visa applicant has a serious health condition cannot be relevant to a claim for complementary protection"?

Federal Court: Federal Court had held in a previous decision that, on judicial review, "where an issue goes to a legal error relevant to the exercise of [an administrative] decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker". Here, the Immigration Assessment Authority (IAA) affirmed a delegate's decision to refuse a protection visa, as it found that Sri Lanka was safe. If Sri Lanka then becomes safe, could it be said that the IAA's decision "became" legally unreasonable?

Federal Court: can a court on judicial review "intervene because of subsequent developments which might suggest that different factual findings or a different conclusion might have been reached by the [Immigration Assessment] Authority if its decision had been made after those subsequent developments had occurred"?

Federal Court: Applicant's citizenship was revoked under s 34(2) of the Citizenship Act 2007 and his deportation was scheduled for 19 Nov 2019. On 11 Nov 2019, Applicant applied to AAT for: review of the revocation decision; and a stay order under s 41 of the AAT Act, which gives the AAT the power to suspend the operation of the revocation decision "for the purpose of securing the effectiveness" of the review application. The hearing of the application for the stay order was to occur on 20 Nov 2019. Applicant eventually applied to FCA for judicial review of the revocation decision and sought interlocutory injunction, restraining Minister from deporting him.

Federal Court: cl 485.223 requires application to be accompanied by evidence that skills assessment has been applied for. In Khan, Full Court had decided that the clause "established an objective temporal test" which does not "import notions of fairness". Here, as a result of a practitioner's mistake, the assessment was only applied for after the visa application had been lodged. Should this case be decided differently on the basis that, here: the practitioner made that mistake; and ImmiAccount "should have rejected the application" given the answer "no" to the question on the visa application form on whether the applicant had applied for an assessment?

Federal Court: Application must be accompanied by evidence that skills assessment has been applied for: cl 485.223. Applicant must provide positive skills assessment by TOD: cl 485.224. On visa application form, Appellant specified the details (date, etc) of a failed assessment application. Did the mere specification of those details constitute evidence? Could it be said that: the failed assessment satisfied cl 485.223, as all that clause requires is that the visa application be accompanied by evidence that an assessment has been applied for; cl 485.224 could be satisfied by a subsequent assessment, so long as positive?

Federal Court (Full Court): Appellant's licence was terminated, after which he applied to the (1st) AAT, which affirmed original decision after a hearing. FCCA remitted the matter to the (2nd) AAT, which also carried out a hearing. 2nd AAT was reconstituted by another Member (3rd AAT) and then affirmed Board's decision. Was 3rd AAT required to afford the Appellant a further hearing? Could any findings by 1st AAT bind the 3rd? Was 3rd AAT allowed to consider 1st AAT's hearing transcript? Could AAT authoritatively determine the limits of its own authority?

Federal Court (Full Court): Applicant did not appear at FCCA hearing, which dismissed a judicial review application under r 13.03C(1)(c) of the Federal Circuit Court Rules. FCCA assessed application for reinstatement of the judicial review application under r 16.05(2)(a), taking into account only one aspect of potentially relevant considerations: whether it was in the interests of the administration of justice to do so. FCCA refused to reinstate. Appellant applied to the Federal Court for leave to appeal the FCCA's decision, arguing that FCCA's failure to take into account other considerations amounted to error.

Federal Court: Although Appellant had not complied with conditions imposed on previous student visas, Department granted him further student visas. AAT affirmed a decision to refuse the Appellant's last student visa application, due to the non-compliance described above. Appellant argued on judicial review that: "any breach of [visa conditions] had been 'condoned' by operation of law when subsequent visa applications were granted without any complaint being raised as to earlier non-compliance'; as a result, AAT was not allowed to take into account earlier non-compliance.

Federal Court: DHA refused nomination and 457 visa. Both sponsor and visa applicant (VA) applied to AAT, which remitted visa application to DHA. Due to DHA's delay, nomination expired & sponsor lost SBS status. Appellant found another employer, who lodged a nomination application, but DHA refused the visa as there was no approved nomination. VA was not entitled to merits review under the old version of s 338(2)(d)(i) because of DHA's further delay, with the result that, at the time of AAT application, no nomination was approved nor under review. Is there a remedy when VAs are blameless?