Case Law Updates

Federal Court. Due to s 500(6L), AAT had 84 days to decide under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa. At the time of AAT's decision, Applicant still had about 6 years of imprisonment to serve. Could AAT make a legally reasonable decision about the risk the Applicant would present to the community upon release 6 years in advance? Did AAT have "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?

Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?

Federal Court (Full Court): the Minister's visa refusal letter indicating that the applicant could apply to the Tribunal within a timeframe to be calculated by the applicant by reference to the legislative provisions (as opposed to stating the date in absolute terms) was an invalid notification; as a result, a 'late' Tribunal application was not late; this decision means that 'late' Tribunal applications including those from years ago may be reconsidered in certain circumstances

High Court. Is para 8.2 of Direction 90 invalid, based on the proposition that "family violence can be relevant only to the protection of the Australian community (under para 8.1) or to the expectations of the Australian community (under para 8.4)"? Does the attribution of weight to family violence under paras 8.1, 8.2 and 8.4 involve double counting?

Federal Court (Full Court). In relation to the assessment of para 14.2(1)(b) of Direction 79, can it be said that the "“nature” of a person’s ties to family members in Australia – and the weight that should be afforded to that matter – can logically be affected by the existence of relationships with other family members who do not live in Australia"?

Federal Court: the A-G declined to recommend to the Governor-General that the Applicant be pardoned and to refer her case to the Queensland Court of Appeal. Were those decisions by the A-G judicially reviewable? Why this decision matters to our clients: under s 501(10) of the Migration Act 1958, a conviction is to be disregarded for the purposes of the character test if the person has been pardoned or the conviction has been quashed.

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: Although this decision concerned a non-migration matter, it could be relevant to migration matters. Construction Occupations Registrar made a decision that it would only grant a licence subject to annotations. Applicant applied to FCA for judicial review of Registrar's decision under ADJR Act, but almost 6 months late. Was the fact that there was no barrier to the Applicant making a fresh licence application a factor that should go in favour of the FCA granting time extension? If so, could that same argument be made in a case where a non-citizen missed the deadline for judicial review application but is not barred by s 48 or any other provision from making a further visa application of the same class as the one that was refused?

Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?

Federal Court (Full Court). The respondent 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 respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?