Case Law Updates

Federal Court. In assessing the risk of a non-citizen re-offending for the purpose s 501(2) of the Migration Act 1958 (Cth), is it unnecessary for a decision-maker to descend to a level of granularity of assessing the risk of specific future criminal conduct, as that would "require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless"? Is there a "period of limitation in the Act which might prevent the Minister taking action under s 501(2)"?

Federal Court (Full Court). Is the jurisdiction of the Federal Circuit Court (FCC) conferred by s 476 of the Migration Act 1958 (Cth) limited to remedies by way of judicial review? Was the power of the FCC circumscribed in the context of the judicial review of migration decisions "because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution"? If the relief sought is "hopeless, inutile and hypothetical", does it mean that the court in which it is sought lacks jurisdiction to grant the relief?

Federal Court. Could r 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) only be satisfied if the nominator would not operate at a loss as a result of employing the nominee for 2 years? Was the salary of another nominee a prohibited consideration under r 5.19(3)(d)(i)? If an employment contract makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment, does that amount to a failure to satisfy r 5.19(3)(d)(ii)?

Federal Court (Full Court): In the context of s 501CA(4), was the Appellant's prohibition upon his ability to return to Australia by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) a legal or a practical consequence of a non-revocation decision? Was that consequence a mandatory relevant consideration? Does the process of statutory construction of the Migration Act "permit of some consequences being more immediate than others"? Does a decision made under cl 5001(c) lack "legal proximity" to decisions made under the Act? The FCAFC was divided on several issues.

Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

Federal Court: Minister found Appellant satisfied s 36 and assessed whether he should refuse protection visa under s 501 by considering consequences of decision, finding that: if granted, potential harm to AU community was "so great that any likelihood that [such harm] would occur represents" unacceptable risk; if refused, Appellant would remain in indefinite detention while Minister considered exercising discretion to grant another visa. As a result, Minister reasoned he did not need to consider consequences of removal, such as persecution. Was that reasoning flawed? Further, can it be said that: "s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa"; PIC 4001 is inconsistent with ss 36(1C) or 501?

Federal Court. The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?

Federal Court: DHA refused nomination and 457 visa. Both sponsor and visa applicant (VA) applied to AAT, which remitted visa application to DHA. Due to DHA's delay, nomination expired & sponsor lost SBS status. Appellant found another employer, who lodged a nomination application, but DHA refused the visa as there was no approved nomination. VA was not entitled to merits review under the old version of s 338(2)(d)(i) because of DHA's further delay, with the result that, at the time of AAT application, no nomination was approved nor under review. Is there a remedy when VAs are blameless?

Federal Court (Full Court). Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"? Was s 376(1)(b) of the Migration Act 1958 (Cth) such that "the relevant quality of confidence attaches to the information at the point the information is given"?

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?