Case Law Updates

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?

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"?