Case Law Updates

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?

Federal Court. IMMI 17/016 specified that applications for a Aged Dependent Relative (Class BU) visa had to be made by post or "delivered by courier service". Did the delivery by an employee of the Appellant's law firm satisfy the latter requirement? Or was it necessary for the delivery to be made by a private company that provides courier delivery services, with the result that the application delivered by that employe was invalid?

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. In circumstances where the applicant gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell, does the onus of proof shift to the Minister to establish the fact that the applicant was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the applicant's release, was s 501(3A)(b) necessarily not met?

Federal Court. In Ibrahim, FCAFC had held that Assistant Minister conflated Australia’s non-refoulement obligations under international treaties with the protection obligations under the Migration Act 1958 (Cth), thus vitiating decision under s 501BA(2) with jurisdictional error. Does the same principle apply to decisions under s 501(2)? Here, did Assistant Minister incorrectly assume that Applicant’s claims would be considered in the same way if he applied for a protection visa, as the circumstances in which consideration of non-refoulement occurs are very different as between the determination of a visa application under s 65 and the exercise of the discretionary power in s 501(2)? Does Direction 75 require that the protection criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa?

Federal Court (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

Federal Court (Full Court): This decision could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application. Question to the FCAFC: Is the exercise of the revocation power in s 46A(2C) subject to procedural fairness? Was the Appellant afforded procedural fairness in the exercise of that power? Did the Minister make a personal procedural decision to consider the exercise of his powers under s 46A? Was a sufficient interest of the Appellant affected?

Federal Court (Full Court): visa cancellation notification taken to have been received under reg 2.55(8), whether or not actually received; AAT had no discretion to accept late application under the Migration and Refugee Division

OMARA: "I am satisfied that the Agent knowingly entered into arrangements that facilitated the provision of unlawful migration assistance... I have taken into account that the applications submitted to the Department on behalf of these sponsors were handled through the Agent’s business and that she was the nominated migration agent. It follows that I am satisfied the Agent knew, else ought to have known, immigration assistance was provided unlawfully in relation to their respective matters".

Federal Court. Does the language of 362B of the Migration Act 1958 (Cth) "confine the circumstances in which the [AAT's] power to dismiss [an application for review] may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued"? Does the AAT have power to conduct hearings via video-link?