Case Law Updates

Federal Court. Do the words 'counterfeit document' in the definition of a 'bogus document' in s 5(1) of the Migration Act 1958 (Cth) include "a document that is authentic in the sense that its provenance as a document is genuine but contains information that is not true"?

Federal Court. Was a finding that the Appellant had been indifferent as to whether her representative had provided false or misleading information "capable of sustaining the conclusion that the information had the requisite character of purposeful falsity", as required by the "false or misleading" test in PIC 4020(1)?

Federal Court. In determining whether the Tribunal afforded the Appellant a meaningful hearing under s 425 of the Migration Act 1958 (Cth), is there a distinction between a “bald statement of belief” on the part of a witness, which may not assist the Tribunal, "and the facts, matters and circumstances supporting that belief, which may be of considerable relevance and importance to determining if that belief has a proper foundation, and therefore should be accepted"?

Federal Court (Full Court). In considering under Direction 110 the protection of the Australian community from criminal or other serious conduct, may it be "appropriate for a decision maker to adopt a comparative risk analysis that looks at the relative risk to the community posed by the non-citizen holding the cancelled visa compared to a BVR"?

Federal Court. Does the Federal Court have jurisdiction to review cancellations made under s 140(1) of the Migration Act 1958 (Cth)? Does s 140(1) apply to a person who is no longer a member of the family unit of a person whose visa was cancelled under ss 109, 116, 128, 133A, 133C or 137J?

Federal Court (Full Court). In the context of an assessment under cl 820.211(2)(d) of Sch 2, can it be said "a decision-maker, in a case where the requirements of one of the Schedule 3 criteria has been found not to be satisfied, is required to consider all of the Schedule 3 criteria, and to make factual findings with respect to each element of those criteria, before assessing whether there are compelling reasons not to apply the Schedule 3 criteria"?

Federal Court (Full Court). Can it be said that, although it was open to the Minister to find that the respondent had taken no substantial steps towards rehabilitation up to the time of the Tribunal hearing, there was no rational basis for him to express views about the respondent’s circumstances at the time of his decision, 13 months after the Tribunal's decision? Is irrationality material by definition?

Federal Court. Does Direction 110 purport to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) of the Migration Act 1958 (Cth) can be exercised, such that it is inconsistent with that subsection and contrary to s 499(2), therefore being invalid?

Federal Court. The Minister found as follows under s 501BA of the Migration Act 1958 (Cth): "While I accept that the removal and visa limitations which result from a decision to cancel [the Applicant’s] visa would likely sever his ability to return to Australia, I find that this is the intended consequence of the operation of s 501 of the Act. Accordingly, I afford this consideration neutral weight." Was that finding circular and therefore legally unreasonable?

Federal Court. In exercising the power in s 501A(3)(a) of the Migration Act 1958 (Cth), was the possibility that if the permanent visa in question was not cancelled the applicant could obtain citizenship an irrelevant consideration or illogical, irrational or legally unreasonable reasoning?