Case Law Updates

Federal Court. Can it be said that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"? Would a fair-minded observer "reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers"? Did the Tribunal effectively take the role of a contradictor?

Federal Court. Does s 131 of the Migration Act 1958 (Cth) confer "power to revoke the cancellation of a visa even where the visa would have ceased to be in effect because the specified period during which the visa permitted its holder to travel to, enter and remain in Australia has ended"? Or rather, if revocation occurs after the original expiry date, is the restored visa 'stillborn'?

According to the OMARA, following a complaint, it sent a notice under s 309 of the Migration Act 1958 (Cth) to the practitioner, who asked for an extension of time to respond to the notice until the lifting of the covid-19 pandemic restrictions. Were those restrictions sufficient to justify a time extension?

Federal Court (Full Court). The High Court said as follows in Viane about s 501CA(4) of the Migration Act 1958 (Cth): "That scheme necessarily requires the Minister to consider and understand the representations received". Does Viane equally apply to the consideration of any material relied on by a person who was subject to the exercise of the power under s 501(1)?

Federal Court (Full Court): As mentioned in previous articles, at least 4 single-judge Federal Court decisions are authorities for the proposition that the materiality test expounded by the High Court in Hossain should not be treated as binary in nature. Now, the Full Court has said something which "might" be interpreted as treating the materiality test as binary. If that is the case, we respectfully disagree and explain why.

Federal Court: A student visa holder was not enrolled in an eligible course and received a notice of intention to cancel his visa pursuant to s 116 for breach of condition 8516. A few days later, he enrolled in an eligible course, before the Minister made the decision to cancel his visa. Can re-enrolment cure a breach of condition 8516? In other words, does re-enrolment have the effect of ceasing the cancellation power from the moment of re-enrolment?

Federal Court. Should subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention? Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre? If the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised, was the applicant’s detention thus unlawful?

Federal Court (Full Court). Was the Minister’s decision under s 501BA(2) of the Migration Act 1958 (Cth) vitiated by reason of the failure to afford natural justice to the Appellant as a result of the invitations to her to provide material and the subsequent omission to have regard to the last provided piece of information?

Federal Court: Appellant was refused a subclass 457 visa and applied to the AAT for merits review, despite not satisfying the old s 338(2)(d), which required, at the time of that merits review application, the existence of an approved nomination or a pending merits review application of a refused nomination. Was "the Tribunal’s jurisdiction ... capable of 'correction' through the lodgement of a fresh nomination from the appellant’s new employer"? If so, was it unreasonable for the AAT to refuse to adjourn the proceedings so that the new nomination could be approved in the meantime?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?