Case Law Updates

Federal Court (Full Court). Should a tribunal of fact "be hesitant about reaching its own conclusions about a person’s state of mind where there is expert evidence on the subject"? Is the Tribunal bound by opinions expressed by experts? Was the Tribunal required to refer in its reasons to every matter to which the expert psychologist had regard?

Federal Court. While the AAT was required to treat offending of the type described under cl 13.1.1(1)(a)-(b) of Direction 79 as “very serious”, did it remain for it to allocate weight in respect of such offending relative to all other relevant considerations under s 501CA(4)(b)(ii) of the Migration Act? Are cl 13.1.1(1)(b) and (d) ultra vires s 499 of the Act to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?

Federal Circuit Court. Can a protection visa applicant "fear a particular type of harm for the purposes of the refugee convention and complementary protection without having ever experienced that particular type of harm in the past"? Is the IAA "obliged to consider a claim that is expressly and clearly made, even if there is no country information to support that claim"?

Federal Court (Full Court). Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"? Was s 376(1)(b) of the Migration Act 1958 (Cth) such that "the relevant quality of confidence attaches to the information at the point the information is given"?

Federal Court (Full Court). If the decision-maker assesses cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) as not satisfied, is it required to consider whether cll 500.212(b) or (c) are satisfied?

Federal Court (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

Federal Circuit Court. Clause 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) read: "the applicant is enrolled in a course of study". Can cl 500.211(a) be satisfied by reason of the applicant having completed all the course work and being awaiting the results of tests and assignments, even if the applicant is no longer enrolled in a course of study?

Federal Court (Full Court). Does s 500(6H) of the Migration Act 1958 (Cth) prevent the Tribunal from "having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"? Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?

Federal Circuit Court. Can the potential for a denial of procedural fairness arise in connection with a parent bringing an application on behalf of a child and the child not attending the Tribunal hearing?

Federal Court. In relation to Direction 79, can it be said that "the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur"? If so, must the whole case under consideration must be out of the ordinary or unusual? Can it be said that "the precise circumstances which led to the issue of materiality not being in issue may be relevant to whether the Court can proceed on the basis that there is no issue as to materiality"?