Case Law Updates

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?

Federal Court. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court. Do the words “an applicant…for a visa of a prescribed kind” in s 140GB(1)(a) of the Migration Act 1958 (Cth) qualify a visa applicant, not the nomination? Was a nomination of a visa applicant made under s 140GB(1)(b)? Was a nomination for a subclass 482 visa capable of satisfying cl 457.223(4)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth)?

Federal Court. Can the power in s 501BA(2) of the Migration Act 1958 (Cth) only be exercised within a reasonable time after the original decision? If so, is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?

Federal Court (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

Federal Court. May there "be overlap between a failure to afford an opportunity to be heard, and a reasonable apprehension of bias on the ground of pre-judgment, because the former may give rise to the latter"?

Federal Court. The Appellant, a subclass 485 visa applicant, had to satisfy cl 485.222 to Schedule 2 of the Migration Regulations 1994 (Cth), which read as follows: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Did the Tribunal make an error in finding that a Diploma of Marketing was not closely related to the nominated occupation of chef?

Federal Court: Judicial review Applicant was invited under s 501CA(3) to make representations seeking the revocation of the mandatory cancellation of his visa on character grounds under s 501(3A). Invitation attached a form which included health questions. Applicant gave details of health conditions and medications and invited Department to contact his doctor. Can it be said that, "by inviting the applicant to make representations in a particular form, the Minister was under a statutory obligation to consider the representations made" and that by "not obtaining and considering the medical information that the applicant intended to form part of his submissions, the Minister ... breached that statutory duty or denied the applicant procedural fairness"?

Federal Court: This decision illustrates why it might not be in a client's best interest to provide the Tribunal with a copy of the Department's decision record. Further, was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness or that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?

Federal Court (Full Court). Cl 820.211(2)(c) required Appellant to be sponsored at TOA. Cl 820.221(4) required sponsorship to have been approved at TOD. Under reg 1.20(1), sponsor is a "person …who undertakes the obligations stated in sub-regulation (2)". Reg 1.20(2)(c) provided that the "sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation...". AAT adopted PAM3, which read that r 1.20 "requires officers to be satisfied that the sponsor can meet the financial needs of the applicant". AAT found Appellant's partner was not capable of fulfilling the undertaking under r 1.20 and thus was not a sponsor. Is the capacity to fulfil that undertaking relevant for the purposes of cl 820.221(4)?