Homelessness an irrelevant consideration?

Federal Court: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction 65, which makes the time a non-citizen "has spent contributing positively to the Australian community" a mandatory consideration? If not, may there be "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"? If so, was the present case one of those circumstances? Further, s 43(2B) of the AAT Act requires the AAT to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Does it follow that everything stated in the AAT's reasons is material to its decision?

DHA obliged to contact people in personal details form?

Federal Court: Judicial review Applicant was invited under s 501CA(3) to make representations seeking the revocation of the mandatory cancellation of his visa on character grounds under s 501(3A). Invitation attached a form which included health questions. Applicant gave details of health conditions and medications and invited Department to contact his doctor. Can it be said that, "by inviting the applicant to make representations in a particular form, the Minister was under a statutory obligation to consider the representations made" and that by "not obtaining and considering the medical information that the applicant intended to form part of his submissions, the Minister ... breached that statutory duty or denied the applicant procedural fairness"?

IAA: avoiding restraint on “new information”?

Federal Court (Full Court): This decision indirectly prompts the question of whether and how it possible to avoid, in some circumstances, the restraint placed on the IAA on receiving "new information". Did the Secretary breach s 473CB(1)(c) "simply on the basis that [some documents] were in the Department’s possession or control and were not considered for relevance by the Secretary"? If not, does s 473CB(1)(c) only require the Secretary to consider documents of which he/she is aware? If not, should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control"?

Last email address provided “in connection with the review”

Federal Court: Appellant's previous counsel made a "deliberate decision to not argue before the [FCCA ground 1 now relied upon]". Was it "unjust for Appellant to be bound by error made by counsel"? Ground 2: Appellant applied to AAT and gave a Gmail address for correspondence. AAT sent email to the Gmail address and Appellant replied from it, CCing a Hotmail address. Appellant then sent AAT several emails from Hotmail, but never formally indicated a change of email address. AAT sent invitation to comment on adverse information to Gmail address, but Appellant claimed he did not receive it. Did the Hotmail address fit the description of "last email address ...  provided to the Tribunal", under s 379A(5)(d)? If so, did it also fit the description of "provided to the Tribunal ... in connection with the review", under s 379A(5)(d)? Is it essential that a "change of contact details" form be completed?

PIC 4005 / 4007 policy might be unlawful

Federal Court (Full Court): Are MOCs allowed to calculate what constitutes "significant costs" under PIC 4007(1)(c)(ii)? Does the degree with which MOCs are required to describe the particularity of the "form or level" of a condition "depend upon the extent to which there is diversity in the experience for those with the particular type of condition"? Who bears the onus of proving that degree on judicial review? Are MOCs' opinions binding for the purposes of waiver? If not, are they at least relevant for those purposes? Can a decision be vitiated with jurisdictional error for having relied on a MOC opinion based on outdated information? If so, must there be a "real indication in the material that the condition ... was changing" in order for the information to be outdated? Does this decision resolve the Ibrahim / Nguyen tension?

AAT failed to consider request to call witness?

Federal Court: This decision summarises the principles governing the exercise of the Tribunal's discretion under s 428 of the Migration Act 1958 (Cth) to call a witness at the request of an applicant under s 426.

Mistranslations and practitioner’s fraud on the court?

Federal Court: FCCA dismissed application under s 477(2) for extension of time within which to make judicial review application under s 476. As dismissals under s 477(2) are not appealable, Applicant applied to FCA for judicial review of FCCA's decision, arguing that FCCA denied him procedural fairness and thus made a jurisdictional error. In what circumstances can mistranslations or non-translations vitiate a decision? Further, Applicant claimed that his representative "had undertaken to bring proceedings [to the FCCA within the statutory timeframe] challenging the IAA’s decision and yet had failed to do so". If that claim were accepted, did the representative's action constitute fraud on the FCCA?

Relocation principle: trauma to the psyche?

Federal Court: IAA accepted Appellant's claims: "murder of his two brothers by the Taliban; the disappearance of a third brother; the appellant having fled the Taliban twice; and the appellant having been beaten and threatened by the Taliban over a period of years". It thus found that there was a real risk that Appellant would suffer significant harm if returned to Afghanistan: s 36(2)(aa). In assessing the reasonableness of relocation under s 36(2B): should the high standard of real risk of significant harm applied to s 36(2)(aa) be applied; although Appellant did not expressly claim that his "traumatic experiences" would be an obstacle to relocation, did that claim clearly arise from the materials before the IAA in that "it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche"?

s 477(2): assessing full merits of judicial review application = jurisdictional error?

Federal Court: In MZABP, FCAFC had held that it is an error for FCCA to assess the full merits of a judicial review application made under s 476 for the purposes of s 477(2). Here, did FCCA make that error by saying that the application under s 476 "would be dismissed if it were a matter that I was dealing with on the merits"? If so, does the materiality test apply to court decisions? With respect: although the FCA has "not had any authority cited to [it] which demonstrates that the materiality principle" applies to court decisions, an earlier FCAFC decision had answered that question; we believe the FCA misinterpreted the materiality test; we disagree with the FCA's decision on whether the error in the present matter was material.

Tribunal implicitly rejected qualification in paragraph 6(3) of Direction No 79?

Federal Court: Para 6(3) of Direction 79 stated: "Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time". That sentence was then followed by this qualification: "However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age". AAT's reasons did not refer to that qualification. Did AAT implicitly reject that qualification? Is the materiality test a binary or balancing exercise? Were the "nature and extent of the consequences [of removal] obvious ... from the material before the Tribunal"?

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