Case Law Updates

Federal Court (Full Court). Under s 5 of the Migration Act, an "excluded fast track review applicant" includes a fast track applicant who "has made a claim for protection in a country other than Australia that was refused by that country". If a protection visa application is refused and the delegate forms the view that the applicant is an excluded fast track review applicant, that refusal is not subject to merits review. Can it be said that "the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia"?

Federal Court. In DFQ17 and BMY18, Full Court of FCA held that, in order for a notification of visa refusal under s 66(2)(d) to be valid, it had to "clearly state" the deadline for applying for merits review. As a result, the "late" AAT applications in those cases were actually not late. In Ali, a single judge of the FCA distinguished DFQ17, holding that the notification in that case clearly stated the deadline for an AAT application. As the circumstances in Ali (i.e. email notification with deadline of 21 calendar days) reflect the vast majority of notifications sent by the Department, Ali had the practical effect of indicating that the error found in DFQ17 only applied to exceptional cases. Now, another single judge of the FCA held, although in obiter (*), that Ali does not sit comfortably with DFQ17 & BMY18 and that the latter decisions should be followed.

Federal Court. A visa application is only made once the VAC is received. This decision confirms that VACs paid by funds transfer (e.g. BPAY) are "taken not to have been received until the payment is electronically matched to the applicant's Internet application form". As the Court interpreted the relevant legislation (including reg 2.12JA) the same way RMAs have for 16 years, there is no reason to be alarmed by this decision.

Federal Court. Applicant gave AAT copy of an Apprehended Domestic Violence Order (ADVO) granted against the sponsor of his partner visa application. AAT affirmed partner visa refusal. Applicant claimed his lawyer advised him to withdraw judicial review application before FCCA in the last minute. FCA found Applicant disagreed with lawyer's advice but "went along with [it]". FCCA gave consent orders, dismissing judicial review application. Applicant applied to FCA for leave to appeal FCCA's decision. Was Applicant estopped by the doctrines of res judicata or Anshun estoppel from pursuing the appeal? Did the circumstances in which the consent orders were made vitiate that consent? Was the grant of the ADVO in itself proof that Applicant was in a spousal relationship with sponsor and therefore met cl 820.211?

Federal Court (Full Court). This decision summarises the legal tests used by the Federal Court to determine whether: to grant an extension of time within which an appeal is to be filed; to allow a party to raise a new ground of alleged error on the part of an administrative decision-maker that was not agitated before a primary judge.

Federal Court (Full Court). "[C]an a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality"? Can the "significant harm" arise from the act of removal from Australia itself? If not, might rendition be an exception? If the Federal Circuit Court (FCCA) "considers any 'doubt' attaches to a decision of [the Federal Court]", is the FCCA bound to follow that decision"? Can the mental harm that would flow from the separation from relatives or self-harm constitute "significant harm"?

Federal Court. In the context of s 501CA(4), AAT said to self-represented Applicant at 1st hearing: "But what you can’t say, and what is not standing up to any sort of scrutiny, is that these police reports are not to be accepted, because Ms [L] be a little bit - or a lot - mentally unwell. If that were the case, the police wouldn’t have made the reports". At the end of 2nd hearing, Applicant was asked whether he wished to disagree with the police reports, but he answered in the negative. Did 1st hearing have the effect of directing Applicant that he could not present his case, thus constituting a denial of procedural fairness (PF)? Or did the opportunity to challenge the reports at the 2nd hearing cure any denial of PF that might have occurred at the 1st hearing?

Federal Court. Appellant spent most of his years in Australia without working, due to injury. Did cl 14.1(2)(a)(ii) of Direction 65 require AAT to "consider either the appellant’s will to be productive"? Accepting that cl 14(1) requires AAT "to take into account matters of relevance to whether to revoke the mandatory cancellation of a visa, apart from those specified in cl 14(1)", can it be said that "the reasons for a lack of contribution to the Australian community are such a relevant consideration"? Could AAT give lesser weight to the relationship between Appellant and his daughter "because at the time of the Tribunal’s decision she was soon to turn 18"?

Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?