Case Law Updates

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Circuit Court. Section 5F(1)(b) of the Migration Act 1958 (Cth) provided that the prospective partner visa applicant and her sponsor must "have a mutual commitment to a shared life as husband and wife to the exclusion of all others". Did s 5F(1)(b) require the visa applicant and sponsor to manifest an affection for each other?

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 (Full Court). Direction No 53 set out the factors decision-makers should take into account in determining whether a student visa satisfied the Genuine Temporary Entrant (GTE) requirement. Are decision-makers required to consider all of those factors and make findings about them in circumstances where the applicant does not place reliance on any of those factors? Does the same answer apply to the current direction, namely Direction No 69?

Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

Federal Court (Full Court). Commonwealth made representations to Appellant that he was an Australian citizen by granting him a passport and enrolling him to vote. He reasonably relied on those representations to his detriment in that he never applied for citizenship and became liable to visa cancellation under s 501(3A). If Commonwealth was his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) and breached its duty to apply for citizenship for him, did the breach, coupled with the representations, render the Minister equitably estopped from treating him as a non-citizen?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

High Court. Does the information to be provided in compliance with s 29(1)(c) of the AAT Act need to be information of the slightest assistance to the Tribunal or any other party to the proceeding? Is non-compliance with s 29(1)(c) intended to result in the invalidity of a Tribunal application?

Federal Court. The Appellant, a subclass 485 visa applicant, had to satisfy cl 485.222 to Schedule 2 of the Migration Regulations 1994 (Cth), which read as follows: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Did the Tribunal make an error in finding that a Diploma of Marketing was not closely related to the nominated occupation of chef?

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"?