Case Law Updates

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: AAT affirmed non-revocation of visa cancelled under s 501(3A) of the Migration Act 1958. AAT was bound by Direction 65, cl 14.1(2) of which was identical to cl 14.1(2) of Direction 79. Was it necessary for AAT to sever the following part of cl 14.1(2) in order to align that paragraph with s 197: "Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists"? Did AAT misinterpret cl 13.1.1(1)(b), which is identical to cl 9.1.1(1)(c) of Direction 79?

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

Federal Court. The Minister found: "I also consider that he would have the same access to welfare, health, education and public support as other nationals". Was the Minister’s finding limited to a general finding that the Applicant would have the same level of access to welfare and public support as other PRC citizens, which did not encompass a finding as to the existence or extent of such services in the PRC?

Federal Court. Is a decision-maker "likely to commit jurisdictional error if it fails to give weight to apparently supporting material from an independent source, without explaining why that material has not been preferred"?

Federal Court (Full Court). Does it follow from the failure to reference certiorari in s 39B of the Judiciary Act, that [the Federal Court] lacks jurisdiction to grant relief of that character, the effect of which is to quash an impugned decision"? Can it be said that the Federal Court "has jurisdiction (not by way of an appeal regularly brought) to review decisions made by its judges"?

Federal Court. Paragraph 34(3)(b) of Citizenship Act 2007 provided citizenship revocation could not occur if "the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country". Is the question whether Applicant would become “a person who is not a national or citizen of any country” a jurisdictional fact, so that the Court can and should answer that question for itself? Is s 34(3)(b) a limitation upon, as opposed to a precondition for, the exercise of the power to revoke citizenship?

Federal Court. Appellant applied for subclass 485 visa under Graduate Work stream, but without positive skills assessment. Although this was not the case here, FCA discussed whether application would be invalid if it nominated 2 streams. Is a stream or subclass a visa class? If a person applies for a visa class, can a different class of visa be granted? Could the visa be granted under the Post Study stream? In answering the latter question, is it relevant that ImmiAccount: allowed the lodgement under the Graduate Work stream despite the fact that Appellant had answered "no" to the question as to whether he had a positive skills assessment; said that lack of a positive skills assessment "may result" in refusal?

Federal Court. Minister revoked Applicant's citizenship, who applied under s 29(7) of AAT Act for time extension to apply for merits review. AAT wrote: "There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances". As a matter of law, do time extension applicants need to establish “truly exceptional circumstances”? Did AAT treat the need for exceptional circumstances as a matter of law?

Federal Court. Is the power under r 36.75(2) of the Federal Court Rules 2001 (Cth) to set aside or vary an order dismissing an appeal discretionary? What are the relevant considerations in the exercise of the power under r 36.75(2)? Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?