Case Law Updates

Federal Court. Subsection 196(4) of the Migration Act 1958 (Cth) read: "if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen". DHA cancelled Applicant's BVA under s 501(3A) and then refused to grant him a protection visa. Was he detained "as a result of the cancellation" of his visa or rather as a result of the visa refusal? Did FCA have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis on the basis that s 196(1) of the Migration Act is not inconsistent with s 23?

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

MARA: "I am satisfied that the Former Agent deliberately misled [the client] on the lodgement process and on the progress of the visa application/s in order to conceal from [the client] the deficiencies in his working knowledge of migration legislation..."

Federal Court (Full Court). Should the Tribunal should have considered, in making a decision under s 501C of the Migration Act 1958 (Cth), "the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child", based on the FCAFC's decision in FAK19? Did anything in the nature of the FCA's discretionary power with respect to costs require any particular consideration of pro bono representation?

Federal Court (Full Court). Do the words “a danger” in s 36(1C) of the Migration Act 1958 (Cth) refer to more than trivial harm? Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community? Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?

Federal Court. Were the financial capacity criterion and enrolment criterion not entirely independent, with the result that the Tribunal's finding on the latter did not render its error on the former immaterial?

Federal Court (Full Court). The respondent gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell. Does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?

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 (Full Court). Can the Tribunal depart from convergent obiter dicta from both the Full Court and a single judge of the Federal Court? Section 501(7)(c) of the Migration Act 1958 (Cth) provided that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Did 501(7)(c) apply to sentences of imprisonment imposed by a foreign court?

OMARA. Did the practitioner facilitate payments to a sponsor in exchange for a visa applicant’s employment and sponsorship? If so, did she act in contravention of ss 245AR and 245AS?