Case Law Updates

Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?

In CPJ16, FCA had determined whether AAT could consider criteria within s 501(6) not considered by original decision-maker. Here, delegate had refused to grant protection visa based on cl 866.222. By the time of AAT's decision on review, that provision had been disallowed and thus no longer applied. Question to AAT was whether to remit the matter to Department with a direction that cl 866.222 did not apply or assess for itself the other criteria for the grant of the visa. It chose the latter. Was AAT authorised to do that? With respect, this decision makes no reference to CPJ16, which was on point, although concerning a different provision.

Federal Court (Full Court). Can disbelief of an applicant or witness on one point subconsciously carry over to affect the decision-maker's disbelief of the same person on other points?

Federal Court. In Mataia, FCA had decided that the principle in cl 6.3(5) of Direction No 79 is a not a mandatory relevant consideration. Does Mataia apply to cl 6.3(7)?

Federal Court. In BCR16, FCAFC explained there was a difference between “claiming to fear harm if required to return to a place and non-refoulement obligations”. Is that distinction illusory in some circumstances? Does the fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so prevent the application of s 198(2B) to him or her? Should those who advise the Minister, and his Department, "be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised"?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Can it be said that, whether an applicant is a genuine applicant for entry and stay as a student is reached by reason only of the particular criteria in cll 500.212(a), (b) and (c)? Do the words in cl 500.212(a) concern only with how long a visa applicant intends to stay in Australia? In assessing whether an applicant "is a genuine applicant for entry and stay as a student", must applicants satisfy each of cll 500.212(a), (b) and (c)? Are some of the factors in Direction No 69 also relevant to cl 500.212(c)? Did the group introduction process at the start of the Tribunal hearing amount to a denial of procedural fairness? Should a litigant be expected to put on an appeal before being entitled to settled reasons from the court below?

Federal Court (Full Court). FCA had said: "The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation". Did FCA engage in merits review by saying that mandatory considerations under s 501CA(4) which AAT had ignored "were not sufficient to outweigh those matters" and that AAT's error was thus immaterial? Does the materiality test threshold vary from statute to statute? Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness? Does the materiality threshold vary according to the type of decision within the Migration Act? Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'? Was it necessary, in order to establish the materiality of AAT's error, for Appellant to demonstrate by evidence what he would have done had error not been made?

Federal Court (Full Court). Appellant applied to FCCA for judicial review (JR) and extension of time within which to apply for JR. In dismissing time extension application, FCCA engaged in more than an impressionistic evaluation of merits of proposed grounds of review. Did FCCA make jurisdictional error by doing so? Can FCCA hear applications under ss 476 and s 477(2) together? Was the FCCA's error not material in that, had it not misconceived s 477(2), it would have decided the JR application against Appellant anyway?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?