Case Law Updates

Federal Court. Can cl 103.213(1)(c) be satisfied even if the course it refers to has not commenced, so long as a reasonable time to commence such study has not yet expired? Does cl 103.212(1)(c) allow the penumbra of study (such as enrolment or other preliminary steps) to commence since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system?

Federal Court: The FCA assumed, without determining, that 'the exercise of power under s 501A is subject to an implied obligation that it be exercised within a reasonable time'. Given that assumption, was that obligation breached by the Minister's 5-month delay in making a decision?

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court. Does the fact that the grant of an injunction would restrain the enforcement of the law by preventing officers of the Commonwealth from performing a statutory duty, and thereby frustrate the legislative scheme of the Migration Act 1958 (Cth), provide a strong reason not to grant an interlocutory injunction in the present case?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

Federal Court (Full Court). Did the discretion in s 32(4) of the AAT Act relate to persons required to appear before the Tribunal, but not to parties? May the word “appear” in s 32(1) of the AAT Act "be understood as invoking concepts of agency, such that the party may be taken to adopt and to be bound by the choices of the representative in the presentation of his or her case"?

Federal Court. The Minister found that cancellation under s 501BA(2) was in the national interest, because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons convicted of the offences involved to remain in Australia. Was that finding irrational, as the Applicant was NZYQ affected and would thus remain in Australia anyway?

Federal Court. Does the balance of convenience favour the granting of an interlocutory injunction in circumstances where "it is arguable as to whether or not jurisdiction exists, and in turn whether or not there has been a departure from ministerially prescribed duties"? What is the prima facie position in relation to the costs of an interlocutory application for an injunction?

Federal Court. Was the MOC's opinion that the costs would be likely to result in a significant cost to the Australian community in areas of health care and community services incorrect "because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018"?