Case Law Updates

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court (Full Court). Does the Tribunal’s place in an administrative decision-making continuum necessarily mean that "the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum"?

Federal Court (Full Court). 1st and 2nd Appellants made protection claims, adding their appellant children as dependents and making protection claims on their behalf. IAA's finding about children was simply: "Country information does not indicate that children are prosecuted". That finding was based on the following passage of a DFAT report: "Children are never subject to bail or fines". Was the IAA's finding a finding "about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen" and thus not supported by evidence? In order to prove an error was material and thus jurisdictional, must judicial review applicant adduce evidence in court of what would have occurred had error not been made, as held in Ibrahim? Or should FCAFC follow Nguyen instead?

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

Agent had been suspended for 3 months and until certain conditions were met. As MARA received no communication from the Agent, the suspension continued to be in effect. MARA then commenced an investigation and found that: Agent had "disengaged from the migration advice profession"; his "prolonged failure to engage with [MARA] and endeavour to comply with the conditions imposed on his suspension appears to demonstrate a blatant disregard for [MARA], the migration advice regulatory scheme, and his former clients".

Federal Court. For the purpose of addressing the consideration in cl 6.3(4) of Direction 79, can it be said that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test and that there is a deemed expectation by the use of the preface “The Australian community expects”?

Federal Court. Interpol Red Notice (IRN) was issued in relation to Applicant, stating he had been charged. A person fails the character test by reason of s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". On the basis of the IRN, Minister personally refused to grant visa under s 501(1), stating: "It is therefore not without some substance that [the applicant] would be under suspicion of these charges". Does use of the word “would” in s 501(6)(h) require more than mere suspicion? Could it reasonably be inferred from IRN that Applicant would present a risk to the Australian community?

High Court. Does responsibility for ensuring an absence of bias, whether actual or apprehended, ultimately lie with a court as an institution and not merely with a member of that court whose impartiality might be called into question? Was there a reasonable apprehension of bias in circumstances where one of the members of the Full Court of the Federal Court hearing a migration-related appeal had appeared for the Crown against the appellant in criminal proceedings?

Federal Court. Condition 8516 imposed on a student visa read: "The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa". Can it be said that "the use of the word ‘continues’ in condition 8516 does not require the Appellant to be enrolled in a higher education course continuously and uninterrupted, but rather that it contemplates that it may be satisfied by enrolment at a future date"?