Case Law Updates

Federal Court. Does the Tribunal have jurisdiction to review a delegate's decision made under s 501CA(4) of the Migration Act 1958 (Cth), even if the delegate’s decision was invalid or beyond power?

Federal Court. In considering Direction No 79 for the purposes of s 501CA(4), should decision-makers consider the consequences of any breaches of Australia’s obligations under international law not only to the non-citizen, but also to Australia? We summarise the answers to this and several other questions.

Federal Court: In an application for merits review to which the 84-day deadline under s 500(6L) of the Migration Act 1958 (Cth) applies, should the reasons provided by the AAT be scrutinised less rigorously than would otherwise be the case? Was the Tribunal required to expressly put the Applicant on notice that it would consider the impact on victims that could flow from a decision to revoke the visa cancellation, pursuant to cl 14.4(1) of Direction 65? Did the AAT misinterpret cl 14.4(1)? Note: cl 14.4(1) of Direction 79 is identical to cl 14.4(1) of Direction 65.

Federal Court (Full Court). Is the change of legal representation on appeal usually sufficient to justify the grant of leave to rely on ground of judicial review not relied on at first instance?

Federal Court: The Appellant provided the Immigration Assessment Authority (IAA) with untranslated documents. Was the IAA required to obtain a translation of those documents?

Federal Court. In determining non-revocation request under s 501CA(4), AAT had to consider Direction 79, para 14.5(1) of which provided AAT had to consider the "extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)...". Does para 14.5(1) require decision-makers to "draw a comparison between the welfare systems in Australia and [the non-citizen's home country]"? Is para 14.5(1) to be applied "solely by reference to a generic citizen of the relevant home country, the characteristics of whom are uninfluenced by the particular non-citizen’s personal circumstances"?

Federal Court: 'if the evidentiary requirements were satisfied simply by a statutory declaration made by [a nurse], who is a non-treating [nurse], the words [under IMMI 12/116] in relation to treatment would be otiose'

Federal Court (Full Court). Para 8.1.1(1)(a)(iii) of Direction 90 said that decision-makers must have regard to the fact that family violence is viewed very seriously by the Australian Government. Did para 8.1.1(1)(a)(iii) bind decision-makers to view family as very serious?

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?

Federal Court. When considering the exercise of his discretionary power under s 501A(2) to refuse to grant a visa in the national interest, is the nature of the visa a mandatory consideration? As Minister accepted Applicant would suffer harm if returned to NZ, should Minister have: explained why returning her to NZ would be in the national interest; considered "the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant"?