Case Law Updates

Federal Court: In deciding whether to affirm a decision of the Minister to cancel an approval for citizenship under s 25 of the Citizenship Act 2007, was the AAT required to take into account the legal consequences of its decision? If so, was the removal from Australia a legal consequence? Was the AAT required to take into account "non-protection" representations about what would happen if the AAT affirmed the citizenship approval cancellation?

Federal Court (Full Court): Due to translation issues, the Appellant did not understand a question that was asked of him at an interview with a delegate. The delegate refused that application. The Appellant then put the IAA on notice of the translation issues. Was the IAA "required ... to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3)"? Did the interpreter's errors bring this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?

Federal Court (Full Court): The Appellant answered "no" to the following question in a visa application form for subclass 300 (prospective marriage): "If you are in a de facto spouse, fiancé(e) or interdependent relationship, are you related to your partner by blood, marriage or adoption?" That same question was asked in the application form for visa subclasses 820/801 (partner) and the same answer was given. As the Appellant was a first cousin of the sponsor, did she fail to satisfy s 101 by providing incorrect information?

Federal Court: In 2018, we summarised the Federal Circuit Court (FCCA) decision in Singh that interpreted Direction 53, which is almost identical to Direction 69. Both directions provide guidance on how to assess the Genuine Temporary Entrant (GTE) criterion for student visa applications. We kept tracking Singh for our readers and we now summarise a decision of the Federal Court (FCA) delivered yesterday on whether Singh was correctly decided. We also discuss how practitioners can use this FCA decision to increase clients' prospects of satisfying the GTE criterion in student visa applications.

Federal Court: Appellant was refused a subclass 457 visa and applied to the AAT for merits review, despite not satisfying the old s 338(2)(d), which required, at the time of that merits review application, the existence of an approved nomination or a pending merits review application of a refused nomination. Was "the Tribunal’s jurisdiction ... capable of 'correction' through the lodgement of a fresh nomination from the appellant’s new employer"? If so, was it unreasonable for the AAT to refuse to adjourn the proceedings so that the new nomination could be approved in the meantime?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

We have always thought that the Tribunal can expand the scope of a merits review by considering issues and provisions not considered by the Department. However, according to this landmark Federal Court decision, that is not always the case. We explain why and how practitioners can use this decision in favour of their clients in terms of limiting the scope of the Tribunal's review. By limiting that scope, clients could have 2 chances to have each issue or provision assessed on their merits, one at the Department level and another at the Tribunal level.

Federal Court (Full Court). In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not clearly convey the deadline for merits review application. One of the reasons was that the statements as to when the notifications were taken to have been received were located under incorrect headings. Is the fact that, here, the statement was located under the correct heading, sufficient to distinguish DFQ17 and BMY18? Was the notification here unclear in that the "date the notification was received had to be determined by reference to the email, which was 'external' to the notification"? Is the "clearly convey" test an objective or subjective test? Was the notification here misleading in that it stated that a review application may not be accepted after the deadline?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

OMARA found it: received 2 complaints against an RMA; sent the RMA notices under ss 308 and 309 of the Migration Act 1958 (Cth); and never received a response from the RMA after some months. Can RMAs be sanctioned on the basis of lack of response? What happens to the substance of the complaint?