Case Law Updates

High Court: it was not in dispute that 'MARA may not take spent convictions into account in making [decisions under s 290(2) of the Migration Act 1958]', but the question was whether the AAT could; Discussion: are visa applicants really required to disclose convictions for which there was no sentence of imprisonment? Can the Minister take into account a visa applicant's spent conviction? Does the non-disclosure of a spent conviction really trigger PIC 4020?

Federal Court (Full Court). Does it follow from the High Court's decision in Plaintiff M1 that there is "an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand)"?

Federal Circuit Court: for the purposes of cancellation under s 116(1)(e), the risk to the good order of the Australian community included risk caused by actions of members of that community; those members needed not be reasonable nor identified

Federal Court. Despite the substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision, and that fact that both powers are to be exercised by reference to Direction 110, are those powers distinct and different in material respects?

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?

Federal Court. In the context of Tribunal proceedings, are prior convictions, especially prior convictions for fraudulent or deceitful acts, probative of a witness’s credibility?

Federal Court (Full Court). Is the power in s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation?

Federal Court. Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational? Can delay be justified on the basis of lack of resources?

High Court. Can it be said that, while "the broad principle is that the Courts ... must ... administer justice in public", the exceptions to this broad principle are "themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done"?

Federal Court. Appellant applied for subclass 485 visa under Graduate Work stream, but without positive skills assessment. Although this was not the case here, FCA discussed whether application would be invalid if it nominated 2 streams. Is a stream or subclass a visa class? If a person applies for a visa class, can a different class of visa be granted? Could the visa be granted under the Post Study stream? In answering the latter question, is it relevant that ImmiAccount: allowed the lodgement under the Graduate Work stream despite the fact that Appellant had answered "no" to the question as to whether he had a positive skills assessment; said that lack of a positive skills assessment "may result" in refusal?