Case Law Updates

Federal Court: Applicant applied to FCCA for judicial review of IAA's decision and for extension of time within which to file that judicial review application. FCCA found that: extension should not be granted "on the ground of inadequate explanation alone"; there was no merit in the judicial review application. As FCCA's decision to refuse to grant time extension was not appealable, Applicant applied to FCA for judicial review that decision and had to show FCCA made a jurisdictional error. FCA held that FCCA erred in holding that judicial review application lacked merit. Was that error jurisdictional? Does the materiality test apply to the determination of whether a court made a jurisdictional error?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?

Federal Court. Was cl 14.2(1)(b) of Direction 79 concerned with the effect of non-revocation, as opposed to revocation, of the cancellation of the non-citizen’s visa? Do cll 14.2 or cl 14.4(1) permit consideration only of the negative impacts on family members of removal of the non-citizen from Australia?

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?

Federal Court: does the question "has the applicant been in any previous relationships" in a partner visa application form refer to relationships in general or only to married or de facto relationships? Can decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? In determining whether information is false, does it matter that, at the time the information was provided, the FCCA had interpreted s 5CB in a way that was subsequently rejected by the FCA?

Federal Court. In the context of the assessment of a person's holding of a religious belief, or adherence to a particular religion for the purpose of the protection criteria, can it be said that "what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge"?

Federal Court: 'I do not think that [deciding to cancel a visa under s 501(3) rather than s 501(2)] is a “decision” which is subject to judicial review'

Federal Court: In a landmark decision which we recently summarised, the Federal Court held that s 501 of the Migration Act 1958 (Cth) did not apply to the refusal of protection visas. But can protection visas be cancelled under s 501? Is a subclass 851 (resolution of status - RoS) visa a protection visa?

Federal Court. Was it legally unreasonable for the Tribunal to refuse to wait for the outcome of merits review concerning the nomination of a position relating to a subclass 457 visa application before reviewing a decision to refuse to grant the subclass 457 visa?

Federal Court. Can it be said that the risk of harm to the applicant from violence and crime upon removal to South Sudan is not reduced by reason that the applicant may make a protection visa application, as such an application may be refused? In other words, should Plaintiff M1 be distinguished?