Case Law Updates

Federal Court. DFQ17 held that a visa refusal notification letter must clearly convey the deadline for an application for merits review in order to comply with s 66(2)(d)(ii). Here, the following sentence was found under the heading "Registries of the [AAT]": "As this letter was given to you by hand, you are taken to have received it when it was handed to you". Did the place of that sentence render the notification unclear? The letter also read: "As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)". Did the latter sentence precisely track reg 4.31(1)?

Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?

Federal Court. Subsection 34(2) of the Australian Citizenship Act 2007 (Cth) provides that the Minister may revoke a citizenship if, among other things, the subparagraphs in s 34(2)(b) are satisfied, such as the person having been convicted of an offence under s 50 of that Act or having obtained citizenship as a result of migration-related fraud. Is the discretion under s 34(2) limited to considerations of the circumstances within s 34(2)(b)? Paragraph s 34(2)(c) requires the Minister to be "satisfied that it would be contrary to the public interest for the person to remain an Australian citizen". In applying s 34(2)(c), can decision-makers consider only what is "contrary to", rather than "in", the public interest?

Federal Court. Does it matter for the purpose of s 501(7)(c) the country where a non-citizen is sentenced? Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events? If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?

Federal Court (Full Court). Does legal professional privilege apply in the context of dealings with the Department or the Tribunal? If so, does the privilege apply only if the representative acts in his/her capacity as a lawyer? If so, is it relevant whether the representative identifies him/herself as a lawyer? Does the privilege apply if the representative is a non-lawyer RMA? Will the "Deregulation" legislation change the answer to any of those questions?

Federal Court (Full Court). Do the expressions in ss 5L(c)(ii) and 5J(3)(a) of the Migration Act 1958 (Cth) necessarily encompass the same "characteristic"? Assuming that IAA accepted that the Appellant's interest for music and dance was "a characteristic that [was] fundamental to [his] identity", was it open to IAA to find that Appellant could avoid a real chance of persecution by carrying out his activities underground and with caution? Could the IAA have "decided that the appellant’s expression of his interest in music and dance “underground” would not conflict with a characteristic which was fundamental to his identity ... without having made a finding concerning the existence and nature of that characteristic"?

Federal Court (Full Court). If a party applies for judicial review of a decision of the AAT but does not join the AAT as a party to the proceedings, is that necessarily fatal to those proceedings? Does the bare fact that a non-citizen is self-represented at the Tribunal and in immigration detention during the AAT hearing amount to a denial of procedural fairness?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

High Court. Should the circumstances in ss 473DD(b)(i) and (ii) be factored into s 473DD(a)? Is the IAA required to consider the conditions in ss 473DD(b)(i) and (ii) before considering s 473DD(a)? If not, would it at least be efficient and prudent for the IAA to consider first the conditions in ss 473DD(b)(i) and (ii) and only then consider s 473DD(a) if one or both of those conditions is satisfied?

Federal Court. Delegate refused to revoke mandatory cancellation of judicial review Respondent's visa under s 501CA(4). AAT remitted the matter to the Minister on the basis that it was "bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained". Was AAT subject to an investigation duty? Was AAT bound to remit the matter to the Minister?