Case Law Updates

Federal Court. In reviewing a decision made under s 501CA(4), did the Tribunal deny the appellant procedural fairness by failing to put him on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against him?

Federal Court. In the context of cancellation under s 501(3) of the Migration Act 1958 (Cth), was the consequence brought about by cl 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) a mandatory relevant consideration, whether or not the Applicant made claims bearing on the latter provision?

Federal Court. Was the Tribunal required to advise the applicant of his entitlement to seek a short adjournment so that he could provide statements from one of more of his siblings in Australia?

Federal Court (Full Court) extends the High Court's materiality test in Hossain: 'the requirement of materiality for there to be jurisdictional error applies to a court as much as it does to an administrative decision-maker'

Federal Court (Full Court): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate

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?