Case Law Updates

Federal Court: The AAT found that a protection visa applicant (the Appellant) was likely to be extorted by Pakistani authorities if removed to Pakistan, but that he could avoid persecution by bribing them. Did the AAT make a jurisdictional error by considering how the Appellant could (as opposed would) conduct himself if removed to Pakistan?

Federal Court: Delegate purported to cancel NZ citizen Appellant's subclass 444 visa under s 116(1)(e) of the Migration Act and DHA purported to remove her under s 198. The cancellation was then quashed by the FCCA on the basis of jurisdictional error (JE). Appellant eventually tried to re-enter Australia, but was refused a 444 visa because: s 32(2)(a)(ii) provided that a 444 visa applicant must not be a "behaviour concern non-citizen"; under s 5, a person who "has been removed or deported from Australia or removed or deported from another country" is a "behaviour concern non-citizen". Can it be said that the phrase “removed or deported from Australia” means legally or lawfully removed or deported from Australia. Alternatively, can it be said that Appellant was never removed under the Act?

Federal Court: Delegate refused to grant a primary applicant child and his/her secondary applicant parents a protection visa. AAT then found there was no real risk that the child would suffer significant harm, on the following basis: "I find that the effects of not having his birth registered and not being able to access citizenship documentation will thus be significantly offset by having two parents to care for him and the financial support of his father". Did AAT make a jurisdictional error by finding that the risk of harm to the child could be offset by the parents' financial support?

Federal Court. Delegate's decision to refuse to grant Appellant a protection visa contained footnote references to documents that were not discussed in delegate's decision. Those documents were adverse to Appellant's claims. IAA, on review, discussed and relied on those documents. Appellant argued to the Federal Court that: "primary rule" under s 473DC was that the IAA conducts a review on the papers by reference to the material "before the Minister"; those documents were not before the Minister, as they were not discussed by delegate, but merely footnoted; thus, those documents were "new information" as defined under s 473BB, which meant that IAA was limited as to the circumstances in which it could consider them.

Federal Court (Full Court). In the High Court's decision in CNY17: unbeknown to Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c); however, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant; IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case"; IAA eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant; IAA's reasons stated that it "had regard to the material referred by the Secretary", but did not refer to additional material; HCA held the giving of additional material resulted in a reasonable apprehension of bias on IAA's part. Here, IAA expressly disavowed reliance on prejudicial material. Was that sufficient to avoid apprehension of bias?

Federal Court (Full Court). Cl 820.211(2)(c) required Appellant to be sponsored at TOA. Cl 820.221(4) required sponsorship to have been approved at TOD. Under reg 1.20(1), sponsor is a "person …who undertakes the obligations stated in sub-regulation (2)". Reg 1.20(2)(c) provided that the "sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation...". AAT adopted PAM3, which read that r 1.20 "requires officers to be satisfied that the sponsor can meet the financial needs of the applicant". AAT found Appellant's partner was not capable of fulfilling the undertaking under r 1.20 and thus was not a sponsor. Is the capacity to fulfil that undertaking relevant for the purposes of cl 820.221(4)?

Federal Court (Full Court). Can it be said that, in the content of determining whether there is another reason to revoke under s 501CA(4) the mandatory cancellation of a visa under s 501(3A), "the greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms"? Further, was Omar (first instance) wrongly decided?

Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?

Federal Court (Full Court). In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not clearly convey the deadline for merits review application. One of the reasons was that the statements as to when the notifications were taken to have been received were located under incorrect headings. Is the fact that, here, the statement was located under the correct heading, sufficient to distinguish DFQ17 and BMY18? Was the notification here unclear in that the "date the notification was received had to be determined by reference to the email, which was 'external' to the notification"? Is the "clearly convey" test an objective or subjective test? Was the notification here misleading in that it stated that a review application may not be accepted after the deadline?

Federal Court. In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not "clearly convey" the deadlines for the respective merits review applications. Must a notification be "piecemeal, entirely obscure and essentially incomprehensible" in order to be invalid? Here, a delegate cancelled the Appellant's visa and notified him as follows under the heading "Review rights": "An application for merits review of this decision must be given to the AAT within [7] working days after you are taken to have received this letter... As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted". Did the above notice clearly convey the statutory deadline?