Case Law Updates

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?

The High Court decided whether Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] [1992]) are within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.

Were the best interests of the Appellant's child a mandatory consideration in determining under cl 820.211(2)(d)(ii) whether to "waive" criterion 3001? The Appellant and his sponsor claimed that the sponsor's pregnancy was not planned. Was it open to the AAT to find that: the conception of the child was "motivated by a desire to bolster [Appellant's] chances of securing waiver of" criterion 3001; and thus that no compelling circumstances existed? If not, was it anyway open to AAT to find that, as the couple "chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application", the AAT "does not accept that the birth ... is a compelling reason"?

Federal Court. In other to consider "new information", the IAA must, among other things, be "satisfied that there are exceptional circumstances to justify considering the new information" (s 473DD(a)). Can it be said that, if a decision-maker states that "there is already substantial material before me regarding [the applicant's claims] and I have accepted his claims", that would, "by itself, exclude the possibility that there are exceptional circumstances to justify considering 'new information'"? Or can it be said, on the contrary, that the "decision-maker's statement that [it had] accepted the claims of the ... [applicant had] a number of dimensions to it" in the circumstances of this case? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgements in Hossain and SZMTA in 2 respects?

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?

Federal Court. If a merits review (Tribunal) applicant appoints an authorised recipient, the Tribunal sends the authorised recipient a letter requesting the applicant to give information, comment or response and the authorised recipient does not inform the applicant of the existence of that letter, does it necessarily follow that: the Tribunal may make a decision without taking any further action; the applicant will not be entitled to a hearing?