Case Law Updates

Federal Court (Full Court). FCCA reserved for 5 years its judgement on an application under s 477 of the Migration Act 1958 (Cth) for an extension of time within which to make a judicial review application. Did the FCCA make a jurisdictional error by failing to take into account its own delay in determining the application for an extension of time? Can delay be sufficient to infect a judgement with jurisdictional error?

Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?

Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?

High Court. The AAT affirmed a refusal to grant the plaintiff a subclass 485 visa on the basis that his visa application had not been accompanied by evidence that the he had applied for a skills assessment. The plaintiff unsuccessfully applied to the FCCA for judicial review of the AAT's decision and unsuccessfully appealed to the FCA. The plaintiff eventually applied to the HCA for constitutional writ "on the basis of grounds rejected in the courts below". Was the application to the HCA in its original jurisdiction an abuse of process? Can cl 485.223 be satisfied by evidence provided to the decision-maker after the time of submitting the visa application?

Federal Court. The Migration Act 1958 (Cth) pointed to the deadline for seeking merits review falling on a Saturday, although the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) (AIA) was to extend it until the following Monday. By being silent on the effect of s 36(2) of the AIA, did the letter notifying of a non-revocation decision fail to state the deadline, with the result that the Tribunal application lodged years later was not late?

Federal Court. Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"? Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?

High Court (single Justice). Do the words 'benefits the Australian economy' in cl 132.227(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) imply a significant benefit?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

Federal Court (Full Court). Secretary provided the IAA with allegations from police and police's decision not to prosecute the Appellant. Those materials were irrelevant to the IAA's task and the Appellant knew they had been provided. The IAA afforded the Appellant an opportunity to address the allegations in those materials, accepted 'new information' from him that no charges would be laid, recognised that the police materials were irrelevant and expressly said it gave them no weight. Was there nevertheless a reasonable apprehension of subconscious bias? Does a reference to relative safety necessarily bespeak error?

Federal Court (Full Court). If the Minister failed to correctly crystallise in his invitation the deadline for making representations to seek the mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth), is that failure immaterial if the Minister considered the representations made in any event? Can it be said that an aggregate sentence of imprisonment was not a single sentence to a term of imprisonment for the purpose of s 501(7)(c), with the result that the cancellation was invalid?