Case Law Updates

Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?

Federal Court. Can a person come within the exception under s 22(9)(d) of the Australian Citizenship Act 2007 (Cth) "simply by establishing some form of connection with Australia or with Australians or with something that is connected to Australia"? Is the discretion in s 22(9) broad and multifactorial? Is a person's expression of desire to live in Australia an indication of a current connection?

Federal Court. Is a child a party to migration judicial review proceedings only if a person is appointed their litigation representative?

Federal Court: Appellant did not satisfy cl 602.212(6)(b). Thus, cl 602.213(3) & (5) required satisfaction of cl 3001. DHA refused application, as it was lodged after 28-day deadline and thus did not satisfy cl 3001. DHA's decision did not explicitly refer to cl 602.212(6). AAT affirmed decision, but failed to explicitly refer to which parts of cl 602.212(6) or cl 3001 were not satisfied. Did AAT's failure to explicitly mention those parts constitute failure to give proper consideration to the issues before it? If  AAT makes erroneous reference to a written submission that was not in fact provided to it, is that, without more, a jurisdictional error? What is a "substantive temporary visa"?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court: AAT made 1st decision, but found out that it was affected by jurisdictional error and made 2nd decision. Both decisions affirmed delegate's decision. Appellant applied for judicial review of 1st decision, arguing that AAT was functus officio after making 1st decision (i.e. lacked power to make 2nd decision). Presumably, Appellant did so in the expectation that it would be easier to establish jurisdictional error in 1st decision. After all, AAT itself had recognised error in it. Is Bhardwaj authority for a "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever"? Or will the consequence, if any, depend upon the particular statute? Appellant argued the latter applied and relied on s 430(2A), which provided that AAT has no power to vary or revoke a decision, to argue that the AAT lacked power for 2nd decision.

Federal Court (Full Court): In her visa cancellation revocation request, the Respondent made an "uncontentious assertion" that the sentencing remarks relating to her most recent convictions made no reference to whether those convictions involved drug use. The Minister took that assertion as a denial that those convictions were drug related and inferred that, because of the denial, she was likely to re-offend. Should the Minister have put the Respondent on notice that her "uncontentious assertion" would be critical to his decision?

Federal Court (Full Court). Did the Tribunal make jurisdictional error by not informing the non-citizen that it was proposing to make adverse and dispositive findings on matters that had been accepted in her favour before the delegate, even though she had declined an invitation by the Tribunal to attend a hearing?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?