Case Law Updates

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?

Federal Court. AAT was required to consider under s 501CA(4) whether to revoke the mandatory cancellation of the judicial review time extension Applicant's visa and to take into account the protection of the Australian community, as mandated by Direction 79. Para 14.1 of that direction required decision makers to consider the "impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour". Did the AAT engage in impermissible double counting when it considered the effect of the Applicant's offending both in the context of the protection of the Australian community and in the context of the impact on the victims of the Applicant's offending?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...

Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?

High Court. Delegate: interviewed Appellant in person and audio recorded it; was convinced, based on demeanour, that Appellant's evidence during interview was plausible and...

Federal Court (Full Court). A FCCA judge said in his reasons that he had relied extensively on the draft reasons made by another judge in preparing his judgment. Was lack of disclosure of draft reasons to Appellant contrary to procedural fairness rules? If so, should costs order below be reversed? Is a continued adulterous relationship determinative of whether definition of "spouse" in s 5F(2)(b) is satisfied? If not, is is at least an exclusionary factor? Is the absence of consent to adultery determinative of whether s 5F is satisfied? If not, is it at least a factor? AAT failed to reveal existence of invalid s 375A certificate containing dob in. Was that failure immaterial, as Appellant was aware of existence and gist of dob in through an FOI and did not make a s 362A request? Does materiality test require judicial review applicant to prove what they would have done had error not been made?