Case Law Updates

Federal Court: Secretary must give IAA "any other material that ... is considered by the Secretary ... to be relevant to the review": s 473CB(1)(C). On judicial review, should the Secretary's subjective view on whether other material should be given to the IAA be determinative? If so, is that a question of fact? If so, who bears the onus of proving it? Secretary required to give reasons for "decision" on relevance? If not, does that make it difficult to prove that Secretary's "decision" was legally reasonable?

Federal Court: IAA must not consider new info unless: exceptional circumstances exist (s 473DD(a)); and new info could not have been provided to DHA or is credible personal information not previously known (s 473DD(b)). May IAA's satisfaction of s 473DD(b) contribute to its satisfaction of s 473DD(a)? Must it so contribute? If it may, but not necessarily must, so contribute, should it at least usually so contribute? If so, may lack of reference to matters in s 473DD(b) in IAA's reasons lead to an inference that those matters were not considered in determining whether s 473DD(a) was satisfied?

Can we make applications on behalf of a sponsor without confirming we have instructions from a person with authority to bind the sponsor? Can we rely on a colleague's assertion that instructions have been received? Does the absence of professional fees waive the need for written confirmation of agreed services? Should social media interactions be added to client files? Are all employer-sponsored visa applicants prevented from paying nomination fees and charges? Can we provide colleagues or assistants with our ImmiAccount login details?

Federal Court: Appellant did not satisfy cl 602.212(6)(b). Thus, cl 602.213(3) & (5) required satisfaction of cl 3001. DHA refused application, as it was lodged after 28-day deadline and thus did not satisfy cl 3001. DHA's decision did not explicitly refer to cl 602.212(6). AAT affirmed decision, but failed to explicitly refer to which parts of cl 602.212(6) or cl 3001 were not satisfied. Did AAT's failure to explicitly mention those parts constitute failure to give proper consideration to the issues before it? If  AAT makes erroneous reference to a written submission that was not in fact provided to it, is that, without more, a jurisdictional error? What is a "substantive temporary visa"?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court: A person fails the character test if it is reasonable to infer from an Interpol notice [IRN] that the person would present a risk to the community: s 501(6)(h). Applicant applied to FCA, seeking orders restraining Minister from refusing visa and declaring that it was not reasonable to infer risk from IRN. Minister served Notice on Applicant to produce Interpol's Response to Applicant's application for IRN to be deleted. Should Applicant's interlocutory application to set Notice aside succeed, on the basis: that Interpol's response could not be used for the purpose of s 501(6)(h); of public interest immunity?

Federal Court: In assessing complementary protection claims, the existence of an element of intentionality in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" requires subjective intention, which is not the case where prison conditions are the result of a lack of resources in a receiving country: SZTAL. Applying SZTAL, FCA had held in AJI16 that "denial or unavailability of healthcare in a receiving country will only engage s 36(2A) where it is in some way personal to the person being returned". Does that mean that "the fact that a visa applicant has a serious health condition cannot be relevant to a claim for complementary protection"?

Federal Court: Federal Court had held in a previous decision that, on judicial review, "where an issue goes to a legal error relevant to the exercise of [an administrative] decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker". Here, the Immigration Assessment Authority (IAA) affirmed a delegate's decision to refuse a protection visa, as it found that Sri Lanka was safe. If Sri Lanka then becomes safe, could it be said that the IAA's decision "became" legally unreasonable?

Federal Court: can a court on judicial review "intervene because of subsequent developments which might suggest that different factual findings or a different conclusion might have been reached by the [Immigration Assessment] Authority if its decision had been made after those subsequent developments had occurred"?

Federal Court: Applicant's citizenship was revoked under s 34(2) of the Citizenship Act 2007 and his deportation was scheduled for 19 Nov 2019. On 11 Nov 2019, Applicant applied to AAT for: review of the revocation decision; and a stay order under s 41 of the AAT Act, which gives the AAT the power to suspend the operation of the revocation decision "for the purpose of securing the effectiveness" of the review application. The hearing of the application for the stay order was to occur on 20 Nov 2019. Applicant eventually applied to FCA for judicial review of the revocation decision and sought interlocutory injunction, restraining Minister from deporting him.