Case Law Updates

High Court. Does the practice in the Federal Court (FCA) of hearing an extension of time application together with argument on the substantive application require the FCA to avoid "conflating the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to ... what was necessary in the interests of the administration of justice"? If so, is the FCA limited to an impressionistic assessment of the merits of the substantive application?

Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.

Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?

Federal Court. 457 nomination applicant (i.e. sponsor) was required to satisfy r 2.72(10)(f), which provided: "the position associated with the nominated occupation is genuine". Does that provision require that the position has existed in the past in the sponsoring business or that it has been filled by anyone?

Federal Court: 'What must be remembered by all who work in the Department ... is the seriousness (for them personally) of the possible contempt of the Court by removal from Australia of an applicant in circumstances where ...'

Federal Court. Do the words used in s 196(4) "contemplate proceedings limited to judicial review of a visa cancellation decision"? Can it be said that "s 196(1) applies to a person who is in fact an unlawful non-citizen, or that reliance on s 196(4) assumes the person is, in fact, an unlawful non-citizen"? Is s 196(2) to the effect that "s 196(1) does not prevent the release from immigration detention of a person who is, as a matter of fact, a citizen or a lawful non-citizen"?

Federal Court: As discussed in a previous article, a judge of the FCA had echoed the writer's concerns about the fact that, sometimes, the Minister inadvertently labels merits review as materiality test considerations. With respect, those concerns have just been echoed by another judge of the FCA.

Federal Court (Full Court): In Chung, FCA held that visa refusal notification under s 66 was no decision for the purpose of s 476. That led FCA to hold in BYN18 that a s 501CA(3)(a) notice was no decision for that purpose. Was BYN18 wrongly decided? If so, could Chung be revisited? In SZQDZ, FCAFC held that decision of an IMR was not a “migration decision” for the purpose of ss 476 / 477. HCA then held in SZSSJ that an ITOA was a “migration decision” for that purpose. Did SZSSJ impliedly overrule SZQDZ, as FCA held in EKU17? Is obligation under s 501CA(3) discharged if non-citizen does not have capacity to understand notification & invitation purportedly issued under it? Are there implications to or from DFQ17?

Federal Court: Although Appellant had not complied with conditions imposed on previous student visas, Department granted him further student visas. AAT affirmed a decision to refuse the Appellant's last student visa application, due to the non-compliance described above. Appellant argued on judicial review that: "any breach of [visa conditions] had been 'condoned' by operation of law when subsequent visa applications were granted without any complaint being raised as to earlier non-compliance'; as a result, AAT was not allowed to take into account earlier non-compliance.

Federal Court. s 501CA(3)(a) required Minister to notify non-citizen that visa had been mandatorily cancelled under s 501(3A). s 501CA(4)(b) required Minister to invite non-citizen to make representations seeking revocation of visa cancellation within period prescribed by regulations. Reg 2.52 set out a period of 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a). When do 28 days start to run? Minister gave notice & made invitation on 22 Jun 2017, but Applicant only made representations on 4 Sep 2017. On 11 April 2019, DHA emailed the Applicant a personal circumstances form, giving him 28 days to respond. Did that email constitute a fresh invitation such as to recommence the running of time and re-enliven the Minister’s power? Can Minister consider late representations