Case Law Updates

Federal Court: Appellant was granted a subclass 820 visa and then claimed to have suffered family violence committed by the sponsor. Appellant sought to rely on family violence (FV) provisions for subclass 801 visa. Could the FV provisions be satisfied if there never was a relationship between the sponsor and the Appellant? If not, could they be satisfied if the relationship was not spousal or de facto in nature? Was AAT bound to accept that the relationship existed at the time of application, given that the delegate had been satisfied that the relationship existed at that point in time?

Federal Court (Full Court): As mentioned in previous articles, at least 4 single-judge Federal Court decisions are authorities for the proposition that the materiality test expounded by the High Court in Hossain should not be treated as binary in nature. Now, the Full Court has said something which "might" be interpreted as treating the materiality test as binary. If that is the case, we respectfully disagree and explain why.

Federal Court: Section 91R of the Migration Act 1958 (Cth), which is now repealed but still operative in some legacy cases, qualified some aspects of Article 1A(2) of the Refugees Convention. In WZAPN, the High Court held that "whether a risk to loss of liberty constitutes 'serious harm' for the purposes of s 91R(1)(b) requires a qualitative judgment". Here, the AAT found that an isolated abduction incident did not constitute a real chance of serious harm. Was that a non-qualitative finding, which thus misinterpreted s 91R?

Federal Court: Minister was considering whether to cancel the Applicant's visa under s 501(2). Applicant stated that "there was targeted violence [in South Sudan] against the Nuer ethnic community of which the applicant is a member, including killings, abductions, unlawful detentions, deprivation of liberty, rape and sexual violence". Minister accepted that the Applicant "would face hardship arising from famine and civil war were he to return to South Sudan". Did the Minister engage with the Applicant's representations?

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, has the FCAFC echoed the writer's views expressed in several articles that the materiality test is not binary but rather that the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant? Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?

Federal Court: Appellant and his brother made separate protection visa applications with very similar claims, making reference to each other. Both applications were refused on the same day and each brother made a separate AAT application. The same Member heard both matters, the brother's hearing occurring a few weeks before the Appellant's. Was the AAT entitled to ignore material of which it had knowledge, namely the evidence given to it by the brother? Was the fact that the Appellant was "represented by a legally qualified" RMA relevant to that question?

Federal Court: In 2018, we summarised the Federal Circuit Court (FCCA) decision in Singh that interpreted Direction 53, which is almost identical to Direction 69. Both directions provide guidance on how to assess the Genuine Temporary Entrant (GTE) criterion for student visa applications. We kept tracking Singh for our readers and we now summarise a decision of the Federal Court (FCA) delivered yesterday on whether Singh was correctly decided. We also discuss how practitioners can use this FCA decision to increase clients' prospects of satisfying the GTE criterion in student visa applications.

MARA: "I am satisfied that the Former Agent deliberately misled [the client] on the lodgement process and on the progress of the visa application/s in order to conceal from [the client] the deficiencies in his working knowledge of migration legislation..."

Federal Court (Full Court): We recently summarised a FCAFC decision which held that: the Minister had made a personal procedural decision to consider the exercise of his powers under s 46A; the exercise of the revocation power in s 46A(2C) was subject to procedural fairness. Now, the FCAFC delivered a further judgement, with remedies that gave effect to that decision. Both decisions could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application.

Federal Court: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)? Can a failure to treat like cases in a like way constitute jurisdictional error? If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept the tender?