Making a decision the same as providing reasons?

Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?

Did the 84-day deadline apply?

Federal Court (Full Court): AAT dismissed application under s 42A of AAT Act. Applicant applied for reinstatement of that application. AAT refused to reinstate on the assumption that, if it reinstated, the original decision would be affirmed by operation of s 500(6L) of the Migration Act, thus rendering reinstatement useless. Was that assumption wrong? If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance?

Sex photos needed to prove homosexuality?

Federal Court: "There are a number of troubling aspects of the Tribunal’s reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following... The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual".

MARA: can 186/187 visa applicants bear nomination costs?

OMARA: [All expenses incurred for the [subclass 187] nomination application are the responsibility of the sponsor and cannot be transferred to the visa applicant"... "I am satisfied that the Agent’s text message conversation with [the complainant] was related to the facilitation of payments intended to be provided to the employer by the visa applicant for a nominated position. It is an offence under sections 245AR and 245AS of the Act to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event".

Can decision makers draw on their own experience?

Federal Court (Full Court): Can admin decision-makers make findings of fact in the absence of evidence? Which of the following approaches is correct? A finding made with no evidence will only amount to jurisdictional error where: a) "the relevant finding is a precondition to the exercise of jurisdiction"; b) "the finding is a critical step in the ultimate conclusion of the decision-maker". Can admin decision-makers, in certain circumstances, "draw on their accumulated knowledge or experience in respect of particular countries"?

FCCA “failed to afford the appellant procedural fairness”

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Complementary protection despite unidentifiable risk?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Another attempt to distinguish Ibrahim

Federal Court: The Full Court had decided in Ibrahim that the Minister had conflated Australia's non-refoulment obligations under international law with the protection obligations under the Migration Act 1958 (Cth). The Minister sought to distinguish Ibrahim on the basis that, here, he had accepted the findings made by an ITOA regarding non-refoulment obligations and had considered the Appellant's claim of harm "outside of the concept of non-refoulement", thus suggesting that there had been no conflation.

Can a mere assertion of fact amount to a denial?

Federal Court (Full Court): In her visa cancellation revocation request, the Respondent made an "uncontentious assertion" that the sentencing remarks relating to her most recent convictions made no reference to whether those convictions involved drug use. The Minister took that assertion as a denial that those convictions were drug related and inferred that, because of the denial, she was likely to re-offend. Should the Minister have put the Respondent on notice that her "uncontentious assertion" would be critical to his decision?

AAT required to assess applicant’s fitness to give evidence?

Federal Court (Full Court): Can the rules of procedural fairness require "special steps or procedure" to be followed in particular circumstances? Could it be said that "there may be sufficient material in a particular case so as to put the AAT on notice that the review applicant did not, or might not, have [the capacity to give evidence]", thus requiring the AAT to take the "special step" of inquiring about capacity? Was this case one of those particular cases?

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