Case Law Updates

Can it be said that, whether an applicant is a genuine applicant for entry and stay as a student is reached by reason only of the particular criteria in cll 500.212(a), (b) and (c)? Do the words in cl 500.212(a) concern only with how long a visa applicant intends to stay in Australia? In assessing whether an applicant "is a genuine applicant for entry and stay as a student", must applicants satisfy each of cll 500.212(a), (b) and (c)? Are some of the factors in Direction No 69 also relevant to cl 500.212(c)? Did the group introduction process at the start of the Tribunal hearing amount to a denial of procedural fairness? Should a litigant be expected to put on an appeal before being entitled to settled reasons from the court below?

Federal Court (Full Court). Is the power in s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation?

Federal Court: Do practitioners have a 'right' to object to unfair questions at Tribunal hearings? Must joint liabilities be owed between applicant and sponsor or must they be owed by them, jointly, to others? If applicant and sponsor owe financial obligations to each other, can that tell against the existence of a relationship? Can the gifting of a car tell against the pooling of financial resources? Can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?

Federal Court: Section 430 requires AAT to provide written statement of reasons for Part 7-reviewable decisions. In Yusuf, it was held as follows about s 430: "The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material". Does the same principle apply to s 473EA, which requires the IAA to sets out its reasons for a decision?

Federal Court. In determining whether an unarticulated claim nevertheless clearly arose from the materials before an administrative decision-maker, is it relevant that the non-citizen was professionally represented before that decision-maker throughout the process?

Federal Court. Under s 196(4) of the Migration Act, if a person is detained as a result of a visa cancellation under provisions such as s 501, "the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen". Interpreting s 196(4) in isolation, a court would have no power to make a non-final (i.e. interlocutory) order for the release of a person to whom that provision applies. However, s 476A(2) provides that, where the FCA has jurisdiction in relation to a matter, that jurisdiction is the same as the High Court's. Does s 476A(2) give the FCA the power to make an interlocutory order for the release of a person to whom s 196(4) applies?

Federal Court. For the purposes of the materiality test, FCAFC (White, Perry and Charlesworth JJ) held in Ibrahim that the judicial review applicant had to prove what would have happened had the decision-maker not made the error in question. FCAFC (Rares, Griffiths and Burley JJ) in Karan came to the same conclusion. FCAFC (Jagot, Robertson and Farrell JJ) in Nguyen disagreed with Ibrahim. FCAFC (Katzmann, Mortimer and Bromwich JJ) recently adopted one of Ibrahim and Nguyen. However, as the FCA decision extracted in this article indicates, the division shown by the Ibrahim / Nguyen tension is still present among justices of the FCA.

Federal Court (Full Court). The Full Court summarised the legal principles concerning s 501CA(4)(b)(ii), which provides as follows: "The Minister may revoke the original decision [to mandatorily cancel a visa under s 501(3A)] if ... the Minister is satisfied ... that there is another reason why the original decision should be revoked".

Federal Court: IAA affirmed decision to refuse Appellant a protection visa. Appellant then unsuccessfully applied to Federal Circuit Court (FCCA) for judicial review. FCCA's decision did not publish Appellant's name, in compliance with s 91X of Migration Act 1958 (Cth), which prohibits courts from publishing names of protection visa applicants. Appellant eventually appealed to Federal Court (FCA), arguing that: FCCA had constructively breached s 91X by publishing information sufficient to identify him; that breach was an appealable or jurisdictional error "because it frustrates the scheme by rendering the IAA decision nugatory..., in that it raises a new claim for protection". Should FCA issue a declaration that FCCA breached s 91X?

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.