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Case Law Updates
Federal Court (Full Court). Is the ambit of a review by the Tribunal "necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review"?
Federal Court (Full Court). Although referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion, did the Tribunal ask itself the correct question when it searched for "another reason" under the Direction, as the Direction itself referred to that question as involving a discretion? If not, can it nevertheless be said that "the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision"?
Federal Court. Is there only one DFAT report which must be taken into account in order to comply with Direction No 84, given that the most recent report said that that it replaced the previous report?
Can an "unauthorised maritime arrival" apply for any type of visa while in Australia? Is the answer determined by s 48 of the Migration Act 1958 (Cth)?
Federal Court (Full Court). AAT granted visa on 11 Mar 2020 to Respondent, who was kept in detention till 17 Mar 2020. Minister applied for JR to FCA, which dismissed application and held, among other things: Respondent was not released earlier because of the Minister's "personal dislike of the Tribunal decision"; “In the absence of explanation, the Minister [had] engaged in conduct which [could] only be described as criminal”. FCAFC unanimously allowed Minister's appeal, holding that conduct in question did not amount to bad faith (and implicitly was not criminal) and was not engaged in by Minister personally. If AAT makes a decision based on the law as then understood and that understanding is later on overturned by a court, is the AAT's decision affected with jurisdictional error ab initio? Did AAT have power to grant visa which had been refused under s 501?
The Federal government has recently announced as follows: "Today the Morrison Government has announced that supermarkets in States and Territories subject to COVID-19 lockdowns...
"I will also say a very clear message to those backpackers who may not be adhering to the social distancing rules... [Y]ou will be breaching your visa condition and if we find that out, we will be kicking you out of the country". We discuss whether non-compliance with social distancing rules can in fact lead to a breach of a visa condition and ultimately the cancellation of a working holiday, work and holiday or other visas.
"Australia’s major supermarkets will temporarily be able to offer more hours to international student employees to help keep shelves stocked". It will be interesting to see whether this measure is extended to other industries until the situation is normalised.