Case Law Updates

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?

Federal Court: Minister found Appellant satisfied s 36 and assessed whether he should refuse protection visa under s 501 by considering consequences of decision, finding that: if granted, potential harm to AU community was "so great that any likelihood that [such harm] would occur represents" unacceptable risk; if refused, Appellant would remain in indefinite detention while Minister considered exercising discretion to grant another visa. As a result, Minister reasoned he did not need to consider consequences of removal, such as persecution. Was that reasoning flawed? Further, can it be said that: "s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa"; PIC 4001 is inconsistent with ss 36(1C) or 501?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?

Federal Court: DHA refused nomination and 457 visa. Both sponsor and visa applicant (VA) applied to AAT, which remitted visa application to DHA. Due to DHA's delay, nomination expired & sponsor lost SBS status. Appellant found another employer, who lodged a nomination application, but DHA refused the visa as there was no approved nomination. VA was not entitled to merits review under the old version of s 338(2)(d)(i) because of DHA's further delay, with the result that, at the time of AAT application, no nomination was approved nor under review. Is there a remedy when VAs are blameless?

Federal Court (Full Court). By reason of s 82(2) of the Migration Act 1958 (Cth), the Appellant's ETA ceased to be in effect upon the grant of a subclass 600 visa. When the latter visa ceased to be in effect, was the ETA reactivated by operation of law?

Federal Court (Full Court). Was it open to the Minister to seek to persuade the Tribunal that the Appellant had engaged in the conduct that constituted the offence of which he was acquitted? In other words, could the Tribunal "go behind" the acquittal? In a case which is concerned with a claim of apprehended bias based upon irrelevant but prejudicial material being before the decision-maker, are the reasons given for the decision relevant to determination of whether a claim apprehended bias is made out?

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

Federal Court. Does the concept of proportionality play a role in determining whether an exercise of discretionary power was legally unreasonable? Does the concept of legal unreasonableness apply to individual aspects of the fact-finding of a decision-maker, such as credibility findings? Does the concept of proportionality form part of the assessment of whether a credibility finding has been made in accordance with established principles as to illogicality or irrationality?

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.