Case Law Updates

Federal Court. Should Thornton and Lesianawai be extended to s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Did the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer render his offending as irrelevant to the Tribunal's inquiry as to the protection of the Australian community under para 8.1.1(1) of Direction 99?

Federal Court: cl 485.223 requires application to be accompanied by evidence that skills assessment has been applied for. In Khan, Full Court had decided that the clause "established an objective temporal test" which does not "import notions of fairness". Here, as a result of a practitioner's mistake, the assessment was only applied for after the visa application had been lodged. Should this case be decided differently on the basis that, here: the practitioner made that mistake; and ImmiAccount "should have rejected the application" given the answer "no" to the question on the visa application form on whether the applicant had applied for an assessment?

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: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?

Federal Court (Full Court). In re-exercising the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?

A Federal Court decision on subclass 457 that might also apply to subclass 482: 'it is appropriate that the Tribunal gives consideration to the correct version of [ANZSCO]... it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision'

Federal Court. When a visa applicant alleges fraud on the part of a representative in the lodgement of a visa application so as to establish that the application was invalid and thus avoid issues with s 48 and PIC 4020, what has to be proven and who bears the onus of proof?

Federal Circuit Court: for the purposes of cancellation under s 116(1)(e), the risk to the good order of the Australian community included risk caused by actions of members of that community; those members needed not be reasonable nor identified

Federal Court. When assessing under para 8.1.1 of Direction 99 the nature and seriousness of the Appellant's conduct to date, is the fact that he remained and worked unlawfully in Australia an irrelevant consideration?