Case Law Updates

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?

Federal Court. Was there a need for the IAA's assessment of the credibility of a letter to coincide with that of the delegate? Entry interview form for unauthorised maritime arrivals asked: "1. Why did you leave your country of nationality (country of residence)? ... 7. Were there any armed groups, political groups, or religious groups operating in the area you lived?" Was Question 1 of the entry interview form asking about reasons for not wanting to return? Could Question 7 of the entry interview form be read as eliciting information about the receiving end of conduct? Is IAA required to give reasons for why it finds an applicant lacks credit?

Federal Court (Full Court). Section s 501CA(4)(a) provides that the Minister may revoke the mandatory cancellation of a visa if "the person makes representations in accordance with the invitation". Reg 2.52(2)(b) provides that representations must be "made ... within 28 days after the person is given the notice" of cancellation. Here, the notice said that representations must be "received within 28 days". Do the terms "in accordance with the invitation" allow the notice to determine what the legislation means? Do the terms "makes" and "made" mean "receives" and "received"?

Federal Court. If a decision to cancel is made by a delegate under s 501(3A), can the Minister personally decide under s 501CA whether to revoke the cancellation?

Federal Court. Ground 2 of the judicial review application was that, in cancelling Applicant's visa, Minister failed to have proper regard to the legal consequences of that decision, the prospect of indefinite detention and the impact on Applicant's mental health. Even if the Minister were required to respond to the interrogatory in a way that supports the submission that, contrary to s 197C of the Act, no person has ever been refouled to Iraq, would that evidence be admissible? Can the collective knowledge of the Department be imputed to the Minister personally?

Federal Court (Full Court). Can the literality of words of judgments be interpreted as if they were the text of a statute? Can secondary materials such as an explanatory memorandum only be looked at if the text of a statute is ambiguous?

Federal Court (Full Court). If a decision-maker disbelieves a person on one matter, can it be said that that disbelief might be carried over to affect the decision-maker's disbelief in other matters? If so and if it is established that belief of a person's credibility on one matter was erroneously based, can it be said, in the context of assessing the materiality of an error, that that might convince the decision-maker of the need to revisit its conclusions on other matters?

Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?