Case Law Updates

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. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?

Federal Court. "In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place"?

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

Federal Court. Delegate mandatorily cancelled visa under s 501(3A) on character grounds, but then revoked that cancellation under s 501CA. Applicant offended again and delegate mandatorily cancelled visa under s 501(3A) again, but this time did not revoke the cancellation. AAT affirmed non-revocation decision. Can it be said that, as earlier revocation decision formed part of the background facts against which AAT came to exercise its review jurisdiction, the facts before the AAT were not the same as those before the delegate at the time of revocation, with the result that AAT was not bound to follow that revocation decision?

High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?

Federal Court. Applicant gave AAT copy of an Apprehended Domestic Violence Order (ADVO) granted against the sponsor of his partner visa application. AAT affirmed partner visa refusal. Applicant claimed his lawyer advised him to withdraw judicial review application before FCCA in the last minute. FCA found Applicant disagreed with lawyer's advice but "went along with [it]". FCCA gave consent orders, dismissing judicial review application. Applicant applied to FCA for leave to appeal FCCA's decision. Was Applicant estopped by the doctrines of res judicata or Anshun estoppel from pursuing the appeal? Did the circumstances in which the consent orders were made vitiate that consent? Was the grant of the ADVO in itself proof that Applicant was in a spousal relationship with sponsor and therefore met cl 820.211?

Federal Court. Can it be said that "information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual" and therefore that country information may include "personal information" for the purposes of the Migration Act 1958 (Cth)?

Federal Court. In Tanielu, the Federal Court had held as follows: "[T]o determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future". Is there a prescribed way of evaluating the risk to the Australian community?

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?