Case Law Updates

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

High Court. Plaintiff was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Plaintiff had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court (Full Court). Does para 14.1(2) of Direction 79 require decision-makers to take account of non-refoulement obligations? If not, might those obligations be required to be considered nevertheless for other reasons, such as because an applicant has raised those obligations? Since the introduction of s 197C, is indefinitely holding a person in detention for no lawful purpose and not refouling the person a possible legal outcome? If so, is the last sentence of para 14.1(6) incorrect to the extent it suggests otherwise? Was AAT obliged by paragraph 14.1(2) to proceed on the basis that refoulement was not a possible outcome?

Federal Court. Combined effect of ss 360(2)(c) and (3) is that an applicant is not entitled to appear before AAT if s 359 applies to the applicant. Subsection 359C(1) applies if a person is invited under s 359 to give information and does not do so within the deadline. Section 363A provides that AAT has no power to permit a person to do a thing if a provision states that the person is not entitled to do that thing, unless a provision "expressly provides otherwise". Does s 363 "expressly [provide] otherwise" by giving AAT the power to "take evidence on oath or affirmation" or to "summon a person to appear"?

Federal Court. In deciding whether to affirm cancellation made under s 109, AAT said Department would conduct an ITOA before removing Appellant from Australia. Combined effect of ss 198 and 197C was that, if AAT affirmed Department's decision, Appellant should be removed as soon as reasonably practicable despite Australia's non-refoulement obligations. Did the removal duty have to be performed regardless of whether any ITOA process would occur?

Federal Court. Is a random act of criminal violence "persecution" for the purposes of s 5J(1) of the Migration Act 1958 (Cth)? If not, but such random acts are committed for reasons of race, religion, nationality, political opinion or membership of a particular social group and those acts are tolerated by State authorities resulting in a systematic failure to apply the law to the perpetrators, can there be persecution for the purposes of s 5J(1)?

Federal Court. Can a failure to make an obvious inquiry amount to jurisdictional error in decisions to revoke citizenship under s 34 of the Australian Citizenship Act 2007? In assessing whether revocation would render Applicant stateless, was it legally unreasonable for Department to rely on information provided by the Ukrainian Vice Consul concerning the operation of the laws of her own country, as the Vice Consul was not a Ukrainian lawyer? Was Minister bound to engage in an “active intellectual process” in deciding whether to exercise his power under s 34(2)? We summarise answers to these and several other questions.

AAT gave some weight to the fact that the applicant's country of origin is impacted by covid-19 in assessing under cl 820.211(2)(d)(ii) whether there were compelling reasons for not applying Sch 3. Although past AAT decisions are not binding on future AAT decisions, we discuss how a decision of the Federal Court can be useful in that it states that like cases should be treated alike, meaning that this AAT decision can be used to argue that the AAT should also give some weight to covid-19 in future cases.

AAT: "[The agent] failed to properly supervise her [employee] and failed to put in place systems to protect clients from repeated wrongdoing by the Company’s employee".

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?