Case Law Updates

Federal Court. Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing permanent visa application. Did r 2.08A require the Minister to "ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant"? Must the ‘statement’ required by r 2.08A(1)(c) impliedly be one made in good faith?

Federal Court. In deciding under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant's visa, the Minister found that "Australia has a low tolerance of criminal conduct for people…who have been participating in, and contributing to, the community only for a short period". Should that finding "be understood as a concrete factual finding reflective of some impossible synthesis or amalgamation of the views held collectively by the Australian community"?

OMARA: "As a member of the migration advice profession, the Agent is expected to act with fairness, honesty and courtesy when dealing with other [RMAs]. This includes efficient and effective communication with other agents with respect to the transfer of client information to the new agent when the original agent’s appointment is terminated... [T]he Agent had made a written undertaking to another migration agent to provide relevant documents, and had failed to do so, in breach of clause 4.6 of the Code".

Federal Court. A person fails the character test by reason of s 501(6)(ba)(i) if "Minister reasonably suspects that the person has been or is involved in conduct constituting ...  an offence under one or more of sections 233A to 234A". Can person fail the test for offences committed before ss 233A to 234A or s 501(6)(ba) were introduced? Can it be said that, although "the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error", "a beneficial approach to the reasons does not demand that any ambiguity in them must be resolved in the Minister’s favour"? Was it legally unreasonable for Minister to find that Applicant represented unacceptable risk to the community and yet that he could grant him a visa under s 195A? Was BAL19 wrongly decided?

Federal Court (Full Court). Can it be said that, although a court cannot scrutinise an administrative decision with "an eye keenly attuned to the perception of error", it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case"?

Federal Court. In considering s 501CA(4) and Direction No 79, AAT expressly accepted Applicant's minor siblings loved and missed him but impliedly found best interests of the children should have neutral weight, based on 4 factors: "the relationship between the applicant and the children was non-parental; there was no evidence he had given them any personal or financial support; for a significant period he had been in custody; and there was 'no evidence upon which the Tribunal can rely to suggest that the Applicant will play a positive or significant role in their future upbringing'". Were those 4 factors capable of entirely negating or neutralising the love children had for Applicant, with the result that they could "lead to a conclusion that the best interests of the children taken as a whole neither weigh for nor against revocation"?

Federal Court (Full Court): was an email that exceeded the maximum size accepted by the addressee nevertheless "capable of being retrieved by the addressee at an electronic address designated by the addressee"?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Federal Court. Does s 423A of the Migration Act 1958 (Cth) codify the circumstances in which the Tribunal may draw an unfavourable inference?

The complementary protection under s 36(2) of the Migration Act 1958 was not engaged, as loss of life as a result of losing access to medical treatment was insufficient to support the conclusion that the appellant would be 'arbitrarily' deprived of his life. However, that provision does not require an actual subjective intent to deprive an applicant of their life