Case Law Updates

Federal Court. Does the Federal Court have jurisdiction to review cancellations made under s 140(1) of the Migration Act 1958 (Cth)? Does s 140(1) apply to a person who is no longer a member of the family unit of a person whose visa was cancelled under ss 109, 116, 128, 133A, 133C or 137J?

Federal Court (Full Court). Subsection 501(2) of the Migration Act 1958 (Cth) gives the Minister the discretion to cancel a visa if certain pre-conditions are satisfied. If certain facts satisfy those pre-conditions but the Minister decides not to cancel a visa, can the Minister re-exercise the discretion and cancel the visa under that same provision based on the same facts? If certain facts satisfy those pre-conditions and the Minister decides to exercise the discretion under s 501(2) to cancel a visa, but the Tribunal sets aside that decision, can the Minister cancel the visa once again under that same provision based on the same facts that satisfied those pre-conditions?

Federal Court. If primary and secondary visa applicants have their combined visa applications refused and they make a Tribunal application for the review of the refusals, does that constitute the making of multiple applications, one for each applicant? Is there anything in 426A "or the statutory context in which it appears which requires the Tribunal to have regard to the merits of the substantive application"? If not, does that mean that "in all circumstances no consideration of the merits is warranted"?

Federal Court. Does the concept of proportionality play a role in determining whether an exercise of discretionary power was legally unreasonable? Does the concept of legal unreasonableness apply to individual aspects of the fact-finding of a decision-maker, such as credibility findings? Does the concept of proportionality form part of the assessment of whether a credibility finding has been made in accordance with established principles as to illogicality or irrationality?

Federal Court. Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)? Is a finding that a non-citizen is of good character for the purposes of the Citizenship Act entirely irrelevant to the question whether his/her visa should be cancelled as a result of failing the character test in the Migration Act?

Federal Court (Full Court). Did cl 14.1(2) and (6) of Direction 79, which conflicted with ss 197C and 198 of the Migration Act 1958 (Cth), effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia? Is the damage to Australia's reputation if it refoules a person a mandatory consideration for the purposes of s 501CA(4)?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

High Court (Full Court): a non-citizen held in immigration detention invited the Court to draw the inference that there was no real prospect or possibility that he would be removed from Australia. Based on that inference, he also invited the Court to adopt the view of the minority in Al-Kateb, to the effect that his detention was unlawful.

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Federal Court. Is s 34(5)(a) of the Australian Citizenship Act 2007 (Cth) satisfied only where the citizen has been convicted of a single offence, as opposed to multiple offences? Is there a meaningful distinction in the context of s 34(2)(c) between the concepts of it being contrary to the public interest for a person to remain an Australian citizen and it being in the public interest that that person not continue to be an Australian citizen?