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Case Law Updates

GTE: incentive to remain in Australia? Obiter in MZAPC limited to “ultimate decision”?

Federal Circuit Court. Although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country, does the GTE criterion in cl 500.212(a) also encompass any positive effects of such obligations? Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

s 501CA(4): legal consequences a mandatory consideration?

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?

CVCheck valid for visa subclass 485?

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?

Beneficial reading of self-represented litigant’s grounds of appeal?

Federal Court. The grounds of appeal formulated by the self-represented appellant "do not appropriately articulate any appellable error by the primary judge. On their face, they simply ask this Court to detect jurisdictional error in the Tribunal’s decision". Would it be wholly inappropriate to read those grounds of appeal "as asserting that the learned primary judge erred by failing to detect the jurisdictional errors identified in grounds one and two"?

CGX20 distinguished?

Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?

Weight accorded to cl 14.2(1)(b) diminished by cl 14.2(1)(a)?

Federal Court. Is it an error to diminish the weight to be accorded to para 14.2(1)(b) of Direction 79 by reason of either of the sub-considerations...

Direction 79: treating balancing exercise as a discretion an immaterial error?

Federal Court. Did the Tribunal err by assuming that its task was a ‘re-exercise’ of a general discretion having regard to the considerations in Direction 79? If so, but the Tribunal nevertheless engages in a balancing exercise of the factors set out in Direction 79, might the error be immaterial, as such a balancing exercise is, in substance, the same as the exercise involved in the exercise of a discretion?

Does s 198AD apply to a ‘fast track applicant’?

Federal Court. In an application for mandamus compelling performance of the duty under s 198AD(2), does the applicant bear the onus of establishing "the non-existence of those circumstances described in ss 198AE, 198AF and 198AG which make s 198AD inapplicable"? Does s 198AD apply to a 'fast track applicant'? Does AJL20 apply to s 198AD(2)? Does FCA have power to order that the applicant be kept at the home of his supporter for the purpose of "immigration detention"?

Direction 79: objective determination of relevance of factors?

Federal Court. In Direction 79, primary and other considerations were specified as matters that must be taken into account 'where relevant'. For the purposes of determining whether there has been compliance with Direction 79, is relevance a matter to be objectively determined? Should judicial review applicants identify particular aspects of the reasoning of an administrative decision said to be illogical or irrational and then claim that, as they were material, there was legal unreasonableness?

Is a s 36(1C)(b) decision a mandatory consideration under s 501(1)?

Federal Court (Full Court). "In light of the findings of the Tribunal (which are treated as findings of the Minister pursuant to s 43(6) of the [AAT Act]), and/or the direction of the Tribunal made pursuant to s 43(1) of the AAT Act", was the Minister "obliged to conclude that [the respondent] was not a danger and/or risk to the Australian community"? Should it be "implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1)"?

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