Case Law Updates

Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?

Federal Court. AAT affirmed delegate's decision not to revoke under s 501CA(4) the mandatory cancellation of the Applicant's visa. On 10 Feb 2020, FCA quashed AAT's decision, but reserved its judgement on whether it should issue a writ of mandamus requiring AAT to determine the application according to law. Subsection 500(6L), which applied to the Applicant at the time of the AAT's decision, provided that the delegate's decision would be affirmed by default if the AAT did not make a decision within 84 from notification of the delegate's decision. Given that, by 10 Feb 2020, the 84-day deadline had already lapsed, would it be futile to issue a writ of mandamus? Or was the AAT's decision, despite having been quashed by the AAT, nevertheless a decision for the purposes of s 500(6L), with the result that that provision no longer applies?

Federal Court. In CRNL, the Full Court held that the Tribunal in that case had ascribed weight to the various considerations, having considered each in isolation, and then expressed a conclusion "without demonstrating that it actually weighed the various considerations against each other", which amounted to a jurisdictional error. Should CRNL be distinguished?

Federal Court: the effect of s 497(2) of the Migration Act 1958 was that the person who sent a visa cancellation notification under s 501CA(3) needed not be delegated power under s 496(1) to cancel or notify of cancellation

AAT gave some weight to the fact that the applicant's country of origin is impacted by covid-19 in assessing under cl 820.211(2)(d)(ii) whether there were compelling reasons for not applying Sch 3. Although past AAT decisions are not binding on future AAT decisions, we discuss how a decision of the Federal Court can be useful in that it states that like cases should be treated alike, meaning that this AAT decision can be used to argue that the AAT should also give some weight to covid-19 in future cases.

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

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?

If an applicant nominates an occupation in a subclass 485 visa application form and then seeks to change the occupation before the decision, the change can only be made if it stems from a mistake, as opposed to a change of mind; The use of a "change of circumstance" (as opposed to an "incorrect information") form might suggest that the change stems from a change of mind

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?