Subconscious bias: can reliance on irrelevant material be disavowed?

Federal Court (Full Court). In the High Court's decision in CNY17: unbeknown to Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c); however, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant; IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case"; IAA eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant; IAA's reasons stated that it "had regard to the material referred by the Secretary", but did not refer to additional material; HCA held the giving of additional material resulted in a reasonable apprehension of bias on IAA's part. Here, IAA expressly disavowed reliance on prejudicial material. Was that sufficient to avoid apprehension of bias?

Must partner visa sponsor have capacity to fulfil undertaking under r 1.20?

Federal Court (Full Court). Cl 820.211(2)(c) required Appellant to be sponsored at TOA. Cl 820.221(4) required sponsorship to have been approved at TOD. Under reg 1.20(1), sponsor is a "person …who undertakes the obligations stated in sub-regulation (2)". Reg 1.20(2)(c) provided that the "sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation...". AAT adopted PAM3, which read that r 1.20 "requires officers to be satisfied that the sponsor can meet the financial needs of the applicant". AAT found Appellant's partner was not capable of fulfilling the undertaking under r 1.20 and thus was not a sponsor. Is the capacity to fulfil that undertaking relevant for the purposes of cl 820.221(4)?

Omar (first instance) wrongly decided?

Federal Court (Full Court). Can it be said that, in the content of determining whether there is another reason to revoke under s 501CA(4) the mandatory cancellation of a visa under s 501(3A), "the greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms"? Further, was Omar (first instance) wrongly decided?

Recent High Court’s decision extended to non-Aboriginals?

Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?

“Late” AAT applications: another piece to DFQ17’s jigsaw

Federal Court (Full Court). In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not clearly convey the deadline for merits review application. One of the reasons was that the statements as to when the notifications were taken to have been received were located under incorrect headings. Is the fact that, here, the statement was located under the correct heading, sufficient to distinguish DFQ17 and BMY18? Was the notification here unclear in that the "date the notification was received had to be determined by reference to the email, which was 'external' to the notification"? Is the "clearly convey" test an objective or subjective test? Was the notification here misleading in that it stated that a review application may not be accepted after the deadline?

“Late” AAT applications: yet another piece to DFQ17’s jigsaw

Federal Court. In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not "clearly convey" the deadlines for the respective merits review applications. Must a notification be "piecemeal, entirely obscure and essentially incomprehensible" in order to be invalid? Here, a delegate cancelled the Appellant's visa and notified him as follows under the heading "Review rights": "An application for merits review of this decision must be given to the AAT within [7] working days after you are taken to have received this letter... As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted". Did the above notice clearly convey the statutory deadline?

Time of delegate’s decision?

Federal Court. Appellant had to satisfy the following time of application criterion under cl 890.211 of Sch 2 to the Migration Regulations 1994 (Cth): "The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made". She also had to satisfy the following time of decision (TOD) criterion under cl 890.221: "The applicant continues to satisfy the criteria in clauses 890.211...". A delegate of the Minister refused to grant the visa and the Appellant applied to the Tribunal for merits review. Should the Tribunal determine the TOD by reference to the time of the delegate's decision? Or should it determine the TOD by reference to the time of its own decision?

Meaning of “time of the Minister’s decision”

Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides that "[a] person is eligible to become an Australian citizen if the Minister is satisfied that the person ... is of good character at the time of the Minister's decision on the application". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?

s 500(6L): does deadline continue to run after court quashes decision?

Federal Court. AAT affirmed delegate's decision not to revoke under s 501CA(4) the mandatory cancellation of the Applicant's visa. On 10 Feb 2020, FCA quashed AAT's decision, but reserved its judgement on whether it should issue a writ of mandamus requiring AAT to determine the application according to law. Subsection 500(6L), which applied to the Applicant at the time of the AAT's decision, provided that the delegate's decision would be affirmed by default if the AAT did not make a decision within 84 from notification of the delegate's decision. Given that, by 10 Feb 2020, the 84-day deadline had already lapsed, would it be futile to issue a writ of mandamus? Or was the AAT's decision, despite having been quashed by the AAT, nevertheless a decision for the purposes of s 500(6L), with the result that that provision no longer applies?

Marketing Diploma closely related to the occupation of chef?

Federal Court. The Appellant, a subclass 485 visa applicant, had to satisfy cl 485.222 to Schedule 2 of the Migration Regulations 1994 (Cth), which read as follows: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Did the Tribunal make an error in finding that a Diploma of Marketing was not closely related to the nominated occupation of chef?

Copyrighted Image

error: Content is protected !!