Case Law Updates

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

Federal Court: Para 6(3) of Direction 79 stated: "Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time". That sentence was then followed by this qualification: "However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age". AAT's reasons did not refer to that qualification. Did AAT implicitly reject that qualification? Is the materiality test a binary or balancing exercise? Were the "nature and extent of the consequences [of removal] obvious ... from the material before the Tribunal"?

Federal Court. Is it "antithetical to the appellate process [or] at odds with s 476A" for FCA to allow "a new ground not considered by the primary judge"? Further, Appellant presented his taskera (Afghan ID card) in support of protection visa application. Delegate suspected taskera was bogus and his representative provided delegate with a document from Appellant's father as evidence that Appellant's taskera was not bogus. The document the representative provided was the father's birth certificate. But representative inadvertently mischaracterised that document as the father's taskera. Given discrepancies between Appellant's taskera and his father's "taskera", delegate found the former was a bogus document. Did delegate make a jurisdictional error despite being entirely blameless? Was forensic examination of taskera irrelevant?

Federal Court (Full Court). Are the words “other serious conduct” referred to in cl 8.1(1) of Direction 99 limited to criminal conduct or criminal convictions?

Federal Court. If a conviction and sentence was sufficient to engage the Tribunal's jurisdiction for the purposes of s 501CA(4)(a)(i) of the Migration Act 1958 (Cth) and other convictions and sentences were not needed to engage that jurisdiction, could the Tribunal go behind those other convictions and sentences insofar as they had a bearing on s 501CA(4)(a)(ii)?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?

Federal Court. Is the ongoing validity of a cancellation effected under s 501(3) of the Migration Act 1958 (Cth) conditional upon timely compliance with the requirements of s 501CA? Does the use of the word 'may' in s 501CA(4) mean that the decision-maker retains the discretion not to revoke a visa cancellation even if satisfied that the non-citizen passes the character or that there is 'another reason' to revoke?

Federal Court. Can a failure to make an obvious inquiry amount to jurisdictional error in decisions to revoke citizenship under s 34 of the Australian Citizenship Act 2007? In assessing whether revocation would render Applicant stateless, was it legally unreasonable for Department to rely on information provided by the Ukrainian Vice Consul concerning the operation of the laws of her own country, as the Vice Consul was not a Ukrainian lawyer? Was Minister bound to engage in an “active intellectual process” in deciding whether to exercise his power under s 34(2)? We summarise answers to these and several other questions.

Federal Court. Should the words in brackets be read into cl 6.3(5) of Direction 79: "Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life [or their adult life], or from a very young age"?