Case Law Updates

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 Can a decision be vitiated with jurisdictional error for having relied on a MOC opinion based on outdated information?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 was changing" in order for the information to be outdated?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?

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.

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?

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"?

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.

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"?

Federal Court: This decision is arguably relevant to migration matters in general. Applicant's Newstart allowance was cancelled by Centrelink. He applied to AAT for merits review, arguing why the allowance should not be cancelled under s 80 of the Social Security (Administration) Act 1999 (Cth). Without notice to the Applicant, AAT affirmed cancellation decision based on s 95 of that Act. In Alphaone, FCA had held that the procedural fairness rule did not require decision-makers to reveal their "thought process". Was the reliance on s 95 instead of 80 a "thought process"?

Federal Court: Appellant made invalid protection visa application containing only claim X and then made a valid protection visa application containing claims X and Y. The valid application was refused and the Appellant then applied to AAT for merits review. The AAT considered the fact that the invalid application did not contain claim Y as indicative that the Appellant's claims were fabricated and affirmed the delegate's decision. Subsection 47(3) of the Migration Act 1958 (Cth) provided (and still does) that "the Minister is not to consider an application that is not a valid application" and also applied to the AAT. Can it be said the the AAT's consideration of the claim contained in the valid application by reference to the material in the invalid application was prohibited by s 47(3)?

Federal Court (Full Court): In SZMTA, HCA had held that: error is jurisdictional only if it is material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC had held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. In Weti-Safwan, it was unnecessary to resolve that tension, given the facts of that case. Can the Ibrahim / Nguyen tension be resolved? Were those decisions distinguished here? With respect, we disagree with one aspect of this decision.

High Court: Under s 44(2A) of Judiciary Act 1903, HCA can remit a matter involving the Commonwealth to FCA. But under s 476B of Migration Act 1958, HCA can only remit a matter that relates to a migration decision to FCA if FCA has jurisdiction under ss 476A(1)(b) or (c). Can it be said that the reach of ss 476B and 476A "is confined to applications for public law remedies in the nature of judicial review of migration decisions and so does not deprive the [FCA] of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment the result of the Commonwealth allegedly taking too long in making a migration decision to grant or refuse a visa"? Did s 486B preclude the plaintiff from bringing the claim in tort as a class action or representative proceeding?