Case Law Updates

Federal Court. For migration proceedings in the Federal Circuit and Family Court, is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?

Federal Court. Can it be said that "any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest"? If so, does it follow that, "in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest"?

Federal Court. Could the fact that there was only one bedroom in the couple's residence be ignored by the Tribunal? If the couple was sharing a bed, did this necessarily militate "strongly against the proposition that they were merely sharing a house"? Is what the decision in He has to say about the correct approach to r 1.15A(3) about whether a person is a spouse directly applicable to the position under r 1.09A(3) for the purpose of determining whether a person is a de facto partner?

Federal Court (Full Court). By reason of s 82(2) of the Migration Act 1958 (Cth), the Appellant's ETA ceased to be in effect upon the grant of a subclass 600 visa. When the latter visa ceased to be in effect, was the ETA reactivated by operation of law?

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

Federal Court (Full Court): ordinarily, a subclass 820 visa application will be decided first and the 801 second. However, decision makers can reverse that order in some circumstances; perhaps that means that a TSS visa can be refused before nomination is processed in some circumstances, thus denying review rights to visa applicants

Federal Court. If a conviction forms the basis for a visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and the cancellation is then revoked under s 501CA(4), is a decision-maker prevented from using that same conviction as the basis to cancel the visa under s 501(3A)? Did s 501(3A) require an act of the Minister by which a visa was cancelled? Or was the provision rather self-executing?

Federal Court. Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred? Can it be said that, under s 501(3) of the Migration Act 1958 (Cth), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test?

Federal Court. A person fails the character test under s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". Interpol issued a notice (IRN) in relation to the Applicant. Was it open to the Minister to draw the inference in s 501(6)(h) from the IRN? In determining whether it was open to the Minister to draw the inference in s 501(6)(h) from the IRN, could regard "be had to the regulatory regime under which Interpol notices are issued"? For the purposes of s 501(6)(h), was the Minister confined to an examination of the IRN?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?