Case Law Updates

Federal Court (Full Court): in a separate  (but not in dissent) judgement, Mortimer J held that the High Court's materiality test in Hossain did not apply to procedural fairness and legal reasonableness

Federal Court (Full Court): 'While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned'

Federal Court (Full Court): in a case where the Minister refused the primary applicant's protection visa application but did not decide the secondary applicant's application, the Tribunal did not have jurisdiction in relation to the secondary applicant

The complementary protection under s 36(2) of the Migration Act 1958 was not engaged, as loss of life as a result of losing access to medical treatment was insufficient to support the conclusion that the appellant would be 'arbitrarily' deprived of his life. However, that provision does not require an actual subjective intent to deprive an applicant of their life

The provision of false information was irrelevant for the purposes of determining whether a passport was a bogus document under s 5(1) and thus whether a protection visa should be refused under s 91WA of the Migration Act 1958

Federal Court (Full Court): Minister was allowed to cancel a BVE under reg 2.43(1)(p)(ii) based on charges against the holder, despite the fact that those charges were laid before the BVE grant.

'... Agent had accessed the personal and immigration information of a person who was not her client on three separate occasions without their knowledge or permission, using [VEVO]'

The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality

Federal Court (Full Court) extends the High Court's materiality test in Hossain: 'the requirement of materiality for there to be jurisdictional error applies to a court as much as it does to an administrative decision-maker'

Federal Circuit Court: The risk of harm or persecution if removed from Australia 'was a matter to be weighed by the Tribunal in determining whether to affirm the' delegate's decision to cancel the visa