Case Law Updates

Federal Court. Can it be said that "the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3), unless the circumstances in subss (4), (5) or (5A) exist"? If so, is "an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment" precluded? If so, would a person "entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid" have the right to reside in the country?

Federal Court. Secretary gave IAA prejudicial material that was irrelevant to the criteria in question. High Court (HCA) had held that a fair-minded lay observer might have apprehended that the IAA might have made a decision otherwise that on the proper merits of the case and remitted the matter to the IAA for reconsideration according to law. The Secretary then provided the HCA's decision to the IAA, differently constituted. As the HCA's decision contained a summary of the prejudicial material, did the giving of that decision to the second IAA give rise to apprehended bias?

Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?

Federal Court. Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy?

Federal Court. Can it be said that "it will almost invariably be the case that there will be differences between the accounts given by a visa applicant" and that the Immigration Assessment Authority's jurisdiction to "review" a decision "is not properly discharged by merely identifying differences between some of the accounts given and labelling those differences “inconsistencies”"?

Federal Court. In the context of the assessment of a person's holding of a religious belief, or adherence to a particular religion for the purpose of the protection criteria, can it be said that "what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge"?

Federal Court. Is the FCA's power to make findings of fact under s 44(7) of the AAT Act "related to the circumstances in which a court upon finding an error of law in the Tribunal’s decision might make an order in substitution for the Tribunal’s decision rather than remit the matter back to the Tribunal for re-determination according to law"? If so, is the FCA nonetheless not to usurp the fact-finding function of the Tribunal in determining whether error is shown in the Tribunal’s decision, because an appeal from a decision of the Tribunal is on a question of law?

Federal Court. Can it be said that, "once the Minister or a delegate is satisfied that all of the criteria for the grant of a visa are met, she or he is under an immediate duty to grant the visa" and that "once the duty to grant the visa has arisen, any subsequent exercise of the power to refuse the visa under s 501 is invalid"? Is PIC 4001 invalid? Is a decision under s 501 ultimately made under s 65?

High Court. If the Minister exercises the power under s 501CA(4) and makes a finding of fact in his reasons, must he "do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known"? If so, is there "any express requirement that the Minister disclose whether a material finding was made from personal knowledge"? If not, can it be assumed that the finding was based on that knowledge?

Federal Court. In assessing, pursuant to Direction 79 and s 501CA(4) of the Migration Act 1958 (Cth), the expectations of the Australian community, the Tribunal reasoned as follows: "I believe that a properly informed and objective member of the Australian community would not expect [the Applicant] to continue to hold a visa to remain in Australia". Is that reasoning on its face inconsistent with the principles expounded in FYBR about the deemed expectations of the Australian community?