Case Law Updates

Federal Court (Full Court). Does the decision to be made as to whether to revoke a visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) require "each of the factors that are listed in s 8.4(4) [of Direction 99] to be taken into account as part of the final weighing exercise to be undertaken in order to comply with the direction"?

Federal Court (Full Court). Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm? Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?

Federal Court. Was it the Respondent, not the Hon Karen Andrews MP (the now former Minister), who had the responsibility to answer the interrogatories administered by the Registrar? Could Ms Andrews be compelled under Part 21 of the Federal Court Rules 2011 (Cth) to answer the interrogatories? Was Ms Andrews authorised under r 21.04(1) of the Rules to make an affidavit verifying her answers? Could Ms Andrews be compelled to attend before the court or a registrar for oral interrogation under r 21.05(b) of the Rules?

Federal Court. Can it be said that "the AAT’s exercise of discretion under s359C of the Migration Act 1958 (Cth) miscarried and through the failure to exercise the discretion properly the AAT failed to conduct a proper review under Part V of that Act"? Can it be said that the "AAT was unreasonable and/or that the AAT failed to conduct a proper review under Part V of the Migration Act"?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

Federal Court (Full Court). In relation to the consideration in para 8.1.2(2)(b) of Direction 99, are decision-makers required to have regard to the likelihood of a 'non-citizen engaging in further criminal or other serious conduct' if they were to be granted a visa, or if their previously granted visa were not to be cancelled?

Federal Court. Does s 131 of the Migration Act 1958 (Cth) confer "power to revoke the cancellation of a visa even where the visa would have ceased to be in effect because the specified period during which the visa permitted its holder to travel to, enter and remain in Australia has ended"? Or rather, if revocation occurs after the original expiry date, is the restored visa 'stillborn'?

Federal Circuit and Family Court. Does s 131 of the Migration Act 1958 (Cth) imply an obligation that a revocation decision is to be made within a "reasonable time"? If so, can it be said that "the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense"?

Federal Court. Did para 8.2 of Direction 110 (about the government viewing family violence very seriously) dictate the weight to be given to the consideration of the family violence? Is it inconceivable that the fact that a non-citizen has engaged in family violence would weigh in favour of that person, even if the relevant offending was at a low level of seriousness?

Federal Court (Full Court). Para 8.1.1(1)(a)(iii) of Direction 90 said that decision-makers must have regard to the fact that family violence is viewed very seriously by the Australian Government. Did para 8.1.1(1)(a)(iii) bind decision-makers to view family as very serious?