Case Law Updates

Once a decision is made to cancel a visa under s 501(2) of the Migration Act 1958 based on certain factual circumstances, can a further decision be made under the same provision, based on the same factual circumstances?

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .

Federal Court: Delegate refused to grant a primary applicant child and his/her secondary applicant parents a protection visa. AAT then found there was no real risk that the child would suffer significant harm, on the following basis: "I find that the effects of not having his birth registered and not being able to access citizenship documentation will thus be significantly offset by having two parents to care for him and the financial support of his father". Did AAT make a jurisdictional error by finding that the risk of harm to the child could be offset by the parents' financial support?

Federal Court (Full Court). In the decision in Stewart  plainly wrong? If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error? If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?

Federal Court: AAT made jurisdictional error by characterising applicant's actions as a 9-year-old as 'offences'

High Court. Can it be said that, while "the broad principle is that the Courts ... must ... administer justice in public", the exceptions to this broad principle are "themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done"?

MARA: "I am satisfied that the Former Agent deliberately misled [the client] on the lodgement process and on the progress of the visa application/s in order to conceal from [the client] the deficiencies in his working knowledge of migration legislation..."

Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...

High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?

Federal Court: according to a previous decision of the Full Court in SZQDZ, an Independent Merits Review was not a "migration decision" for the purposes of s 477 of the Migration Act 1958. A subsequent decision of the High Court in SZSSJ held that an International Treaties Obligations Assessment was a "migration decision". The question to the FCA was whether SZSSJ overruled SZQDZ to the effect that a Protection Obligation Evaluation was a "migration decision", thus reviewable by the Federal Circuit Court and with a 35-day filing limitation.