Case Law Updates

Federal Court: The AAT received 2 non-disclosure certificates under s 375A, but only disclosed the existence of the first. The second certificate referred to the MRT, although the MRT had already amalgamated into the AAT. The appellant argue, among other things, that had he known about the existence of the second certificate, he could have argued: that it was invalid as it referred to the abolished MRT; that even if it were valid, he could have argued for a favourable discretion to disclose the content covered by it. Does a discretion really exist?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court (Full Court): Is the obiter dicta in MZZJO authority for the proposition that a decision-maker will necessarily make a jurisdictional error if, in assessing a protection visa application, he or she relies "solely or primarily on the absence of claims from an entry interview" whose purpose is not to assess the applicant's claim for protection?

Federal Court: AAT found: Kenyan authorities did not discriminate against people with mental illness, as they did not recognise those types of illness; rather, the authorities would, through a law of general application, take action against the Appellant on the basis of his (potentially criminal) erratic behaviour; thus, AAT found that he would not be discriminated against. Is a foreign law of general application capable of being implemented in a discriminatory manner? If so, can that amount to persecution? Does persecution require a subjective element of enmity or malignity?

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?

Federal Court (Full Court): Due to translation issues, the Appellant did not understand a question that was asked of him at an interview with a delegate. The delegate refused that application. The Appellant then put the IAA on notice of the translation issues. Was the IAA "required ... to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3)"? Did the interpreter's errors bring this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?

Federal Court: A student visa holder was not enrolled in an eligible course and received a notice of intention to cancel his visa pursuant to s 116 for breach of condition 8516. A few days later, he enrolled in an eligible course, before the Minister made the decision to cancel his visa. Can re-enrolment cure a breach of condition 8516? In other words, does re-enrolment have the effect of ceasing the cancellation power from the moment of re-enrolment?

Federal Court: The AAT's decision record included: "If his application before the Tribunal is unsuccessful, [the Applicant] would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention". As the Applicant was actually not subject to indefinite detention (see s 197C), did the use of the term "indefinite detention" in the decision record mean that the AAT made a decision on an incorrect understanding of the law?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

Federal Court (Full Court): Appellant applied for revocation of the mandatory cancelation of his visa, providing his wife's statutory declaration about his remorse and his own declaration to the same effect. The Minister ignored the Appellant's own declaration. Whether that amounted to jurisdictional error turned on whether the wife's declaration was the "best" evidence about the Appellant's remorse.