Case Law Updates

Federal Court. Did the ability lawfully to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the cancellation of a visa "expire with the expiry of what would otherwise have been the duration of the term of the visa"? In other words, can it be said that the ability to revoke the cancellation did not exist, as revocation would merely restore an already expired ('stillborn') visa?

Federal Court (Full Court). Was the Tribunal permitted for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) to consider the combined influence of cll 9.4.1(2)(a) and (b) of Direction 90 as constituent parts of the “other ties” consideration in cl 9.4.1(2) and apply the abating effect under cl 9.4.1(2)(a)(i) to that consolidated whole?

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

Federal Circuit Court: The risk of harm or persecution if removed from Australia 'was a matter to be weighed by the Tribunal in determining whether to affirm the' delegate's decision to cancel the visa

Federal Circuit Court. Section 5F(1)(b) of the Migration Act 1958 (Cth) provided that the prospective partner visa applicant and her sponsor must "have a mutual commitment to a shared life as husband and wife to the exclusion of all others". Did s 5F(1)(b) require the visa applicant and sponsor to manifest an affection for each other?

If an applicant nominates an occupation in a subclass 485 visa application form and then seeks to change the occupation before the decision, the change can only be made if it stems from a mistake, as opposed to a change of mind; The use of a "change of circumstance" (as opposed to an "incorrect information") form might suggest that the change stems from a change of mind

Federal Court (Full Court). Para 8.1.1(1)(a)(iii) of Direction 90 said that decision-makers must have regard to the fact that family violence is viewed very seriously by the Australian Government. Did para 8.1.1(1)(a)(iii) bind decision-makers to view family as very serious?

Federal Court. Can it be said that "any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest"? If so, does it follow that, "in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest"?

Federal Court (Full Court): 'the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation [to] matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4)' of the Migration Act 1958 (non-revocation of visa cancellation)

Federal Court: in the context of merits review of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth), can it be said that any departure by the original decision-maker from his or her notification obligations under s 501G(2)  would result in invalidity of a merits review application, "without consideration of the extent and consequences of the departure"?