Case Law Updates

Federal Court (Full Court): Direction 65, which for the purpose of this decision was identical to Direction 79, required the Tribunal to take into account a number of considerations in deciding whether to refuse a visa under s 501 of the Migration Act 1958 (Cth). One such consideration was labelled the "expectations of the Australian community". Are those expectations pre-determined by the direction itself as deemed expectations? What is the content of those expectations?

Federal Court (Full Court). Did s 33(1) of the Acts Interpretation Act 1901 (Cth) apply to s 501CA of the Migration Act 1958 (Cth), with the result that the Minister had the power, after having issued an invitation under s 501CA(3)(b), to issue another invitation that was effective for the purposes of s 501CA(4)?

Federal Court: AAT found: Kenyan authorities did not discriminate against people with mental illness, as they did not recognise those types of illness; rather, the authorities would, through a law of general application, take action against the Appellant on the basis of his (potentially criminal) erratic behaviour; thus, AAT found that he would not be discriminated against. Is a foreign law of general application capable of being implemented in a discriminatory manner? If so, can that amount to persecution? Does persecution require a subjective element of enmity or malignity?

Federal Court: when considering whether a position is genuine as part of a nomination application under r 2.72, is Minister obliged to consider the tasks of ANZSCO unit group? If not, is Minister at least allowed to consider those tasks? If Tribunal refuses to grant visa on the basis of its refusal to approve nomination and the nominator wins on judicial review so that nomination is remitted back to the Tribunal, should the Court dismiss the visa applicant's judicial review application as the visa applicant still did not have an approved nomination?

Federal Court: "There are a number of troubling aspects of the Tribunal’s reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following... The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual".

Federal Court: DHA refused nomination and 457 visa. Both sponsor and visa applicant (VA) applied to AAT, which remitted visa application to DHA. Due to DHA's delay, nomination expired & sponsor lost SBS status. Appellant found another employer, who lodged a nomination application, but DHA refused the visa as there was no approved nomination. VA was not entitled to merits review under the old version of s 338(2)(d)(i) because of DHA's further delay, with the result that, at the time of AAT application, no nomination was approved nor under review. Is there a remedy when VAs are blameless?

Federal Court. Even though the applicant had not been convicted in court, the Tribunal found that he had been 'convicted'. Did the Tribunal finding involve a misinterpretation of the law? Could the Tribunal have reasonably considered the view of the applicant's minor child to love the applicant to be irrelevant to the best interests of the child?

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

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): This decision could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application. Question to the FCAFC: Is the exercise of the revocation power in s 46A(2C) subject to procedural fairness? Was the Appellant afforded procedural fairness in the exercise of that power? Did the Minister make a personal procedural decision to consider the exercise of his powers under s 46A? Was a sufficient interest of the Appellant affected?