Case Law Updates

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

Federal Court. Were the tests in ss 34(2)(c) and 34(2) of the Australian Citizenship Act 2007 (Cth) retrospective only, with the assessment of risk of reoffending being of little or no relevance? In such tests, is it generally permissible for decision-makers "to have regard to such deterrence as a factor in the protection of the integrity of the naturalisation process, provided that it is not associated with a substantial purpose of pursuing retribution for or denunciation of the specific conduct engaged in by the person whose citizenship is revoked"?

Federal Court. Section 91X of the Migration Act 1958 (Cth) prohibits publication by the FCCA, FCA or HCA of the name of any person who has applied for a protection visa, if the proceeding relates to that visa. Is s 91X constitutionally valid? If it is in the interests of justice, was it open to the FCA to order that an administratively allocated set of letters and numbers be replaced by a "human pseudonym"? If so, was it in those interests to so order so late in the appeal?

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), is it possible to consider a non-citizen's criminal history without taking all of it, including a successful appeal on sentence, into account?

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: In deciding whether to affirm a decision to refuse a visa under s 501(1) of the Migration Act 1958 (Cth), the AAT was bound by Direction No 65, cl 11.2 of which made it mandatory for decision makers to consider the best interests of minor children affected by the decision. Was the AAT bound to consider the best interests of the Applicant's unborn child? Note: cl 11.2(4) of Direction No 65 was almost identical to cl 9.2(4) of the current direction, namely Direction No 79.

Federal Court. Delegate's decision to refuse to grant Appellant a protection visa contained footnote references to documents that were not discussed in delegate's decision. Those documents were adverse to Appellant's claims. IAA, on review, discussed and relied on those documents. Appellant argued to the Federal Court that: "primary rule" under s 473DC was that the IAA conducts a review on the papers by reference to the material "before the Minister"; those documents were not before the Minister, as they were not discussed by delegate, but merely footnoted; thus, those documents were "new information" as defined under s 473BB, which meant that IAA was limited as to the circumstances in which it could consider them.

Federal Court. Applicant was an unauthorised maritime arrival (UMA) and thus s 46A barred. In July 2017, Minister made determination that bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. When July 2017 Determination was made, Applicant's mother satisfied criteria (a) to (c). In Sep 2019, Applicant applied for SHEV, but application was considered invalid by DHA, as criterion (c) was no longer satisfied. Was that criterion to be satisfied by reference to July 2017 or the time of the SHEV application? Alternatively, should procedural fairness have applied to an assessment carried out for the purposes of a possible exercise of the Minister's discretion to lift the bar?

Federal Court. Does a Class BF Transitional (Permanent) Visa satisfy the definition of a “protection visa” in s 48A(2) of the Migration Act 1958 (Cth)? Was BAL19, which held that s 501(1) did not apply to protection visas, wrongly decided?

Federal Court. When a visa applicant alleges fraud on the part of a representative in the lodgement of a visa application so as to establish that the application was invalid and thus avoid issues with s 48 and PIC 4020, what has to be proven and who bears the onus of proof?