Case Law Updates

Federal Court: This judgement is about a visa which was refused in 2017, when the "old" version of s 338(2)(d) was in effect. However, the judgement referred to the "new" version of that provision, which only came into effect in December 2018. This case illustrates how challenging it is for anyone to keep up with the pace of change in our industry. Fortunately, it seems that the reference to the "new" provision did not make a difference in the outcome of the case, given the circumstances.

Federal Court (Full Court). Section 9.1.1 of Direction 79 required AAT, in considering the exercise of discretion under s 501(2), to have regard to the "principle that crimes of a violent nature against women or children are viewed very seriously". Appellant was convicted under s 13 of Crimes (Domestic and Personal Violence) Act 2007 (NSW): "A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence". He was also convicted under s 14: "A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence". Is s 13 limited to physical violence? Was AAT wrong to label offences as "serious"? Did AAT depart from Briginshaw principle because of lack of conviction to support a finding?

Federal Court. Section 426(1A)(b) provided that if an applicant failed to appear before the Tribunal, the Tribunal could dismiss the application without any further consideration of the application or information before it. Was the power in s 426(1A)(b) a discretion which must be exercised legally reasonably?

High Court: "This Court accepted in [SZMTA] that the giving of a notification under s 438(2)(a) ... triggers an obligation of procedural fairness on the part of the [Tribunal] to disclose the fact of notification to an applicant for review under Pt 7. [Does] the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority ... to disclose the fact of notification to a referred applicant in a review under Pt 7AA"?

Federal Court. Does the appellate jurisdiction of the Federal Court encompass an appeal from the issue of a writ of habeas corpus? Is the issue of a writ of habeas corpus interlocutory in nature? Did s 198AD(1) of the Migration Act 1958 (Cth) apply to a person who: (a) has received a favourable exercise of the power in s 46A(2); or is a “fast track applicant” within the meaning of the Act?

Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?

Federal Court. The Applicant was found to be owed protection, but had his protection visa application refused for character reasons. He was a person within the cohort affected by NZYQ, meaning that he could not be held in immigration detention while removal from Australia remained impracticable in the reasonably foreseeable future. As such, he was granted a BVR. Was the Tribunal required to compare the risk to the Australian community as between holding the BVR and a protection visa?

Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?

Federal Court. Does the "Citizenship Act require the relevant decision maker to consider and decide on each aspect of s 21(2) once s 21(1) is enlivened, even if a prohibition on approval applies", such as s 24(6)(g)?

Federal Court (Full Court). The power under s 501CA(4) of the Migration Act 1958 (Cth) can be exercised in the circumstances described in s 501CA(1), which provides as follows: "This section applies if the Minister makes a decision ... under subsection 501(3A)" (emphasis added). If a visa is cancelled under s 501(3A) by a delegate, does that mean that a decision cannot be made under s 501CA(4)?