Case Law Updates

Federal Court: Saak held that decision-makers should be cautious before making adverse credibility findings based on the fact that a person who arrived by sea omitted a claim at an initial interview carried out just days after arrival and only made that claim later on as part of a protection visa application. Can SAAK operate much later, when the claim is first made in writing with the assistance of an RMA? Is SZTAL authority for the proposition that “no matter how poor the conditions [are] found to be” in the non-citizen's country's prisons, "they will be necessarily irrelevant to Australia’s complementary protection obligation"? Is AAT allowed to ignore claim that is not an applicant's prime focus or is contained in voluminous amount of material? Should AAT or courts consider evidence of content of foreign law? If so, can Wikipedia be used for that purpose?

Federal Court (Full Court): Where a conviction or sentence is the foundation for the exercise of power by a decision-maker, can a challenge be made to the essential facts on which the conviction or sentence was based? If not, is the position different in the context of s 501CA(4)? Should AAT have considered "evidence that went beyond the essential facts underpinning his conviction and sentence"? Can a decision-maker, for the purposes of s 501CA(4), refuse to accept a non-citizen's challenge to a fact on which a sentence is based, on the one hand, and use that challenge against the non-citizen in the context of assessing remorse, on the other hand? Can the difference between sentence & conviction play any role in answering whether the facts on which they were based might be challenged? Subsequent FCA decision seems to have impliedly distinguished this decision.

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Under the Migration Act 1958 (Cth), a person served a written notice by the Department, requesting information that might help it ascertain the identity or whereabouts of another person, is obliged to provide that information. Non-compliance can result in imprisonment. Is an RMA obliged to provide clients' information? Does the answer depend on whether the RMA is a lawyer? If practitioners do not have the information sought, are they required to take steps to obtain it?

Federal Court: IAA affirmed visa refusal. Its reasons included: "The report was not before the delegate... I note that the applicant has engaged a representative to assist with the IAA process; however I am not satisfied that the mere engagement of a representative can be considered exceptional". FCA said that "EMJ17 is authority to support the submission that it can be a jurisdictional error to conclude that the absence of 'exceptional circumstances' within the meaning of s 473DD(a) means that the discretion under s 473DC cannot be exercised in favour of getting new information". Does the IAA's decision here "[display] the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist"?

Federal Court: s 425 required AAT to invite Appellant to appear before it to "give evidence and present arguments relating to the issues arising in relation to the decision under review". AAT invited Appellant to a hearing in relation to the review of the delegate's decision to refuse him a protection visa. At the hearing, AAT put it to Appellant that there was a trend after 2013 of reduction of violence in the Appellant's country, based on some reports. Appellant had opportunity to comment. AAT's decision record relied on a subsequent report (2016 DFAT report) which confirmed that trend, but of which Appellant was not put on notice. Was the 2016 DFAT report an "issue" arising in relation to the decision under review or was it merely a factual matter going to that issue? Should AAT have convened a second hearing?

Federal Court: Minister cancelled Appellant's visa and detained him. Appellant applied to FCA for extension of time to file application seeking judicial review of cancellation decision. FCA dismissed that application on 18 Dec 2019 and delivered ex tempore reasons. DHA was going to remove Appellant on 7 Jan 2020. On 6 Jan 2020, self-represented Appellant: filed late appeal of the FCA's decision (presumably to FCAFC); did not apply for an extension of time to appeal; and also applied for an urgent injunction to restrain his removal. By the date of the decision on the injunction application, 6 Jan 2020, FCA still had not published its reasons nor formally entered its order. Was injunction granted? Injunction application was decided by a different single judge of the Federal Court, not the FCAFC.

Federal Court: IAA affirmed decision to refuse Appellant a protection visa on the basis that he could relocate to Kabul: "I am ... not satisfied that there is a real risk of him facing significant harm ... in Kabul". Under s 36(2B)(a), "there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if ... it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". As per MZACX and MZZJY, in order for relocation to be reasonable, risk of harm in other place is relevant, but risk need not be as high as "real" and harm need not be as serious as "significant". Did IAA treat reasonableness of relocation as necessarily involving the same risk and level of harm as set out in s 36(2)(aa), namely "real" and "significant"?

Federal Court (Full Court): s 473DD provides that IAA must not consider new information unless certain preconditions are satisfied. But does that provision expressly or impliedly empower IAA to consider new information? Can it be said that "the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the [IAA] in deciding whether 'exceptional circumstances' exist", pursuant to s 473DD(a)? What factors is IAA "required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD"? Can the "matters concerning the substance or merits of the new information" sometimes be relevant for the purposes of s 473DD(a)? Is IAA "required to take into account or have regard to the matters advanced by the applicant as establishing either" ss 473DD(b)(i) or (ii)?

Federal Court (Full Court): In Chung, FCA held that visa refusal notification under s 66 was no decision for the purpose of s 476. That led FCA to hold in BYN18 that a s 501CA(3)(a) notice was no decision for that purpose. Was BYN18 wrongly decided? If so, could Chung be revisited? In SZQDZ, FCAFC held that decision of an IMR was not a “migration decision” for the purpose of ss 476 / 477. HCA then held in SZSSJ that an ITOA was a “migration decision” for that purpose. Did SZSSJ impliedly overrule SZQDZ, as FCA held in EKU17? Is obligation under s 501CA(3) discharged if non-citizen does not have capacity to understand notification & invitation purportedly issued under it? Are there implications to or from DFQ17?