Case Law Updates

Federal Court (Full Court). The AAT affirmed a refusal of a nomination application under r 5.19 and then affirmed the corresponding subclass 187 visa application refusal. The visa applicant applied for judicial review of the AAT's visa decision. Did he have standing in court to collaterally challenge the AAT's nomination decision through the application for judicial review of the AAT's visa decision? Did cl 187.233(3) refer to a decision in fact made, even if affected by jurisdictional error? Did r 5.19(4) require that the 'position' be restricted to one geographical location?

Federal Court (Full Court). In Jul 2017, Minister determined that s 46A 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. Was the latter criterion to be satisfied by reference to Jul 2017 or the time of the SHEV application? We also summarise the court's views on the requirements of procedural fairness concerning s 46A.

Federal Circuit Court. Clause 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) read: "the applicant is enrolled in a course of study". Can cl 500.211(a) be satisfied by reason of the applicant having completed all the course work and being awaiting the results of tests and assignments, even if the applicant is no longer enrolled in a course of study?

High Court. Is the existence of a duty to afford procedural fairness a question of statutory interpretation? Is there a "strong" common law presumption, "generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness"?

Federal Court. Should Minister have put Applicant on notice he would reconsider delegate's findings? Does Direction 79: treat visa refusals as inappropriate in a case where the “character concerns” of the visa applicant present no risk to the Australian community; allow decision-makers to treat the expectations of the Australian community as the decisive consideration? Are those expectations the Minister's conception of what such expectations are? Is a reasonable time to the making of a decision implied into ss 65 or 501? If so, how is it calculated? Was a delay of more than 3 years unreasonable? If so, did detention become unlawful from the time of implied deadline onwards?

Federal Court (Full Court). Section s 43(2B) of the AAT Act provided that written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Is a failure to give reasons as required an error of law?

Federal Court. Can it be said that "evidence that a particular cohort of persons has a 13% chance of recidivism is equivalent to a statement that 13 out of 100 persons in the cohort will reoffend but that evidence, by itself, says nothing about the likelihood of a particular member in the cohort reoffending"? Did cl 6.3(5) contain a mandatory consideration? Are the offences to which cl 13.1 of Direction No 79 is directed "violent and/or sexual crimes against women, children and vulnerable members of the community"?

Federal Court. Is it reasonably arguable that the question of whether it is ‘reasonably practicable’ to remove a person from Australia is an objective ‘jurisdictional fact’, that is a fact which a court can and should determine for itself?

Federal Court. Can it be said that "a conclusion as to a person’s citizenship might be made administratively without any passport or other identity documents, just on the basis of an apparently truthful statement by the person (or another, perhaps a parent) as to their place of birth and confirmation by an Australian diplomatic or other source that persons so born acquire that country’s citizenship"?

Federal Court. In reviewing a decision made under s 501CA(4), did the Tribunal deny the appellant procedural fairness by failing to put him on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against him?