Case Law Updates

High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.

Federal Court (Full Court): The effect of s 48A(1AA) used to be that a person who relied on the Refugees Convention criterion under s 36(2)(a) for a protection visa (PV) application was barred from making a further PV application while in Australia if the original application had been refused. However, that person was not barred from making a further PV application based on the complementary protection under s 36(2)(aa). Subsection s 48A(1AA) was then amended, with the aim of changing that rule, but has the amendment achieved that aim?

High Court: By a 6:1 majority, the HCA decided that the "Chorley exception" to the rule that self-represented litigants cannot recover costs for their own time spent on litigation is no longer part of our common law. The "Chorley exception" allowed self-represented solicitors to recover self-representation costs. But most importantly, the majority questioned whether an incorporated legal practice offering services to third parties could recover costs for work of its sole director and shareholder. Does the same question arise for immigration assistance?

Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?

Federal Court: Did the FCCA inadvertently deny the Appellant procedural fairness by, among other things, saying to him that "you can't give [the FCCA] anything new"? The answered turned on what "anything new" meant in the circumstances.

Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.

Federal Court (Full Court): A person fails the character test under s 501(6)(b) if they have been a member of, or have been associated with, a group, organisation or person that has been involved in criminal conduct. Does the Acts Interpretation Act 1901 set up a presumption that a piece of legislation that is silent about its territorial operation, as is the case with s 501(6)(b), only applies within Australia? If so, does the object of the Migration Act 1958 rebut that presumption?

Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?

Federal Court (Full Court): AAT dismissed application under s 42A of AAT Act. Applicant applied for reinstatement of that application. AAT refused to reinstate on the assumption that, if it reinstated, the original decision would be affirmed by operation of s 500(6L) of the Migration Act, thus rendering reinstatement useless. Was that assumption wrong? If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance?

Federal Court: "There are a number of troubling aspects of the Tribunal’s reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following... The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual".