Case Law Updates

Federal Court: this decision answers whether: time of decision (TOD) criteria require decision-makers to consider up-to-the-minute information or whether there can be a gap between the point in time the information relates to and the TOD; in protection claims, the assessment of fear of harm can be temporally relative such as "the risks have reduced over time" or whether it must be an absolute assessment of the fear as at the TOD; decision-makers can "rely on the subjective experience of a limited class of people, of uncertain characteristics, to determine an objective level of safety" for an applicant.

Once an RMA becomes aware that a client may have provided false information to the Department, are they obliged to notify the Department? MARA's answer to that question is quite interesting.

Federal Court: Due to s 500(6L), AAT had only 84 days to decide whether to affirm delegate's decision. Applicant asked for adjournment in order to obtain representation. AAT's refusal to adjourn was legally unreasonable. With respect, in answering whether that error was material, did the FCA echo what the writer had written in an article dated 5 Oct 2019: "is it not the case that it is not possible to rule out that the placing of even more weight to [a consideration] could have tipped the scales in favour of revocation?"

Federal Court: As discussed in a previous article, a judge of the FCA had echoed the writer's concerns about the fact that, sometimes, the Minister inadvertently labels merits review as materiality test considerations. With respect, those concerns have just been echoed by another judge of the FCA.

Federal Court: in the context of a review by the Immigration Assessment Authority, were the photos of the scarring previously shown by the Appellant at an interview to a delegate "new information" for the purposes of s 473DC of the Migration Act 1958? Did the fact that the photos were taken many months after the interview make any difference? Further, if the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions?

Federal Court: in the context of merits review of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth), can it be said that any departure by the original decision-maker from his or her notification obligations under s 501G(2)  would result in invalidity of a merits review application, "without consideration of the extent and consequences of the departure"?

Federal Court: "The Tribunal provided an audio-recording of part of the hearing, but indicated that the remainder of the hearing had not been recorded due to technical difficulties". Is there a "general obligation to make, and give to the applicant, an audio-recording of an administrative hearing"?

Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?

Federal Court: A delegate of the Minister refused a protection visa application and provided written reasons, pursuant to s 66 of the Migration Act 1958 (Cth). Those reasons contained the date of the decision, but not the time. The matter was automatically referred to the Immigration Assessing Authority (IAA) under s 463CA, which required the IAA to review the decision as soon as reasonably practicable after the delegate "made" the decision. Did the fact that the letter was silent as to the time of the delegate's decision mean that there was no decision to refer to the IAA?

Federal Court (Full Court): "Notwithstanding provisions in Pt 7AA of the Migration Act 1958 (Cth)", was the Immigration Assessment Authority "obliged by natural justice ... requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing"?