Case Law Updates

Federal Court (Full Court). Can it be said that "the national interest requires an emergency, a significant threat or other circumstances involving the nation as a whole" and that "[t]he expression ‘national’ also directs attention to the interests of Australia as a whole as distinct from local or regional interests within Australia"?

Federal Court (Full Court). Although the Applicant's case was “novel” in the sense that there was an absence of judicial consideration of PIC 4003(b), is this alone insufficient to justify departure from the rule that costs should follow the event?

Federal Court. The Applicant was an NZYQ-affected BVR holder. Was it "not necessarily irrational or illogical to consider the provisions of the Direction on the basis that cancellation of the applicant's Global Special Humanitarian visa would remove his entitlement to stay in Australia thereby requiring his removal, provided the Tribunal also separately and sufficiently brought to account the additional consideration relevant to the applicant, namely that, in all likelihood, he would remain in Australia under different visa arrangements"?

Federal Court. Was Principle 6 of clause 5.2 of Direction 110 "concerned with attributing some responsibility or blame to Australia for a non-citizen’s conduct"?

Federal Court. Can it be said that the existence of a protection finding, with the result that s 198 neither required nor authorised removal, did not render legally unreasonable the giving of heavy weight in the Applicant's favour to the extent of impediments to removal, particularly because of his statement "that he may request removal to Nepal in light of the other legal consequences of refusal of the visa"?

Federal Court. By stating that Direction 110 required some actions to be taken, did the Assistant Minister proceed on the basis that he was personally required to apply the Direction, thereby making a jurisdictional error?

Federal Court. Can it be said that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"? Would a fair-minded observer "reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers"? Did the Tribunal effectively take the role of a contradictor?

Federal Court. Did visa subclass 186 "contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant"? Can an employer correct an erroneous nomination withdrawal?

Federal Court. In the context of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), can it be said that, since the grant of a student visa would allow the appellants to stay in Australia for only a specified period, a mere change of plans from a visitor visa to make an application for a student visa could not provide evidence of an intention to stay permanently or indefinitely in Australia?

Federal Court (Full Court). In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415" of the Migration Act 1958 (Cth), with the result that the Minister had the power under s 417 to substitute for the decision of the Tribunal?