Case Law Updates

Federal Court. Can it be said that "the absence of an express finding in a Tribunal’s reasons on matters referred to in a ministerial direction does not necessitate the conclusion that no finding was made", as "a decision-maker may not refer to a particular matter because it has been found to be immaterial, or of no real significance" and as "there was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no substantive submissions were made, and which were not the subject of relevant evidence"?

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court (Full Court). "Where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, [does it necessarily follow] that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information"? In determining a claim of apprehended bias where the Secretary provided the Tribunal with irrelevant, but highly prejudicial, material in the context of Part 7 of the Migration Act 1958 (Cth), what is the knowledge attributable to the hypothetical fair-minded lay observer?

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?

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)?

Federal Court (Full Court). In assessing Direction 79, can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?

Federal Court. AAT wrote: "a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily". Was AAT's approach wrong because "cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and ... there is no additional requirement that the applicant be a genuine student"? As studying in Australia would necessarily prolong Appellant's stay, was it wrong for AAT to reason that appellant wanted to prolong her stay? Was AAT required to make a finding in relation to each factor in Direction No 53?

Federal Court: the effect of s 497(2) of the Migration Act 1958 was that the person who sent a visa cancellation notification under s 501CA(3) needed not be delegated power under s 496(1) to cancel or notify of cancellation