Case Law Updates

Federal Court. In BAL19, FCA decided that s 501 did not apply to protection visa refusals. Does BAL19 also apply to s 501A refusals? Was the decision in BAL19 plainly wrong? Can the Minister "continue to administer the law on their own understanding of what the law is (or what it “should be”), and not as settled in BAL19, or to ... administer the law in a manner which they hope will be settled by the Full Court on appeal"? Subsection 476A(1) gave FCA jurisdiction in relation to migration decisions personally made by the Minister under s 501 and its analogues, but not under s 65. Minister argued that if he failed to make a decision within a reasonable time, that would be a decision under s 65, with the result that FCA did not have jurisdiction to order mandamus in relation to the failure to make a decision within a reasonable time. Did FCA have jurisdiction by reason of the terms "in relation to" in s 476A(1)?

Federal Court. Appellant applied for subclass 485 visa under Graduate Work stream, but without positive skills assessment. Although this was not the case here, FCA discussed whether application would be invalid if it nominated 2 streams. Is a stream or subclass a visa class? If a person applies for a visa class, can a different class of visa be granted? Could the visa be granted under the Post Study stream? In answering the latter question, is it relevant that ImmiAccount: allowed the lodgement under the Graduate Work stream despite the fact that Appellant had answered "no" to the question as to whether he had a positive skills assessment; said that lack of a positive skills assessment "may result" in refusal?

Full Court of Federal Court (FCAFC). Appellant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Appellant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Appellant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Appellant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Appellant argued to FCA that AAT could have made a decision before deadline and have given reasons later. FCA held AAT would have breached s 43(2) of the AAT Act, had it done so. Appellant appealed to FCAFC. With respect, does this decision stand in contrast to a previous FCAFC decision?

Federal Court. Should Minister have put Applicant on notice he would reconsider delegate's findings? Does Direction 79: treat visa refusals as inappropriate in a case where the “character concerns” of the visa applicant present no risk to the Australian community; allow decision-makers to treat the expectations of the Australian community as the decisive consideration? Are those expectations the Minister's conception of what such expectations are? Is a reasonable time to the making of a decision implied into ss 65 or 501? If so, how is it calculated? Was a delay of more than 3 years unreasonable? If so, did detention become unlawful from the time of implied deadline onwards?

Federal Court. Minister revoked Applicant's citizenship, who applied under s 29(7) of AAT Act for time extension to apply for merits review. AAT wrote: "There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances". As a matter of law, do time extension applicants need to establish “truly exceptional circumstances”? Did AAT treat the need for exceptional circumstances as a matter of law?

Federal Court. Brennan J stated the tripartite test in Mabo (No 2) for determining a person's Aboriginality. That test was adopted in Love in the context of determining whether a person is an alien within the meaning of the Constitution. For the purposes of applying the 2nd and 3rd limbs of that test, can a person "be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically", in the absence of evidence of the laws and customs of that different society, "including particularly in relation to the existence or process of any mechanism of 'cultural adoption'"? Does the indigenous society or people have to "exist today for a biological descendent to be able to establish that he or she is not an alien"?

MARA. Does the lodgement of skills assessment applications or EOIs constitute immigration assistance? Can RMAs be sanctioned for that type of work?

Federal Court (Full Court). For the purposes of assessing complementary protection criteria, s 36(2B)(a) required AAT to consider whether "it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". Is s 36(2B)(a) informed by, and does it give effect to, a principle akin to the principle of internal relocation? Did AAT misinterpret s 36(2B)(a) by using as a starting point its assessment that Appellant had two "home areas", rather than directing attention to the place where Appellant was likely to return to?

Federal Court (Full Court). Section 9.1.1 of Direction 79 required AAT, in considering the exercise of discretion under s 501(2), to have regard to the "principle that crimes of a violent nature against women or children are viewed very seriously". Appellant was convicted under s 13 of Crimes (Domestic and Personal Violence) Act 2007 (NSW): "A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence". He was also convicted under s 14: "A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence". Is s 13 limited to physical violence? Was AAT wrong to label offences as "serious"? Did AAT depart from Briginshaw principle because of lack of conviction to support a finding?

Federal Court held: leaving aside s 196, it is necessary for officers to hold a reasonable suspicion throughout the period of a detainee’s detention under s 189; the reasonable suspicion must be held by the detaining officer; the tasks of the immigration detention centre case managers in this case fell short of what is required for it to be said that they are detaining a person under s 189; the construction of s 196(4) involve reading it as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”; and despite the fact that, had the Applicant not been unlawfully detained, he should have been lawfully detained anyway, the Applicant was awarded exemplary damages.