Case Law Updates

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

High Court. Does responsibility for ensuring an absence of bias, whether actual or apprehended, ultimately lie with a court as an institution and not merely with a member of that court whose impartiality might be called into question? Was there a reasonable apprehension of bias in circumstances where one of the members of the Full Court of the Federal Court hearing a migration-related appeal had appeared for the Crown against the appellant in criminal proceedings?

Federal Court (Full Court). If the decision-maker assesses cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) as not satisfied, is it required to consider whether cll 500.212(b) or (c) are satisfied?

OMARA: 'I have found that the Former Agent had ... taken on a large number of clients and accepted their money in advance but did little or no work to act on their instructions; repeatedly failed to communicate with her clients in a timely manner; ... repeatedly failed to ...

Federal Court. Was the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was “not negligible” irrational or unreasonable, "in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant’s present state of mind or his current attitudes towards sexual offending"?

Federal Court (Full Court). In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, was it necessary for the judicial review applicant to show that any errors were jurisdictional? In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, is there a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional?

High Court. Can it be said that s 494AB of the Migration Act 1958 (Cth) does not take away the jurisdiction of any court to hear and determine proceedings of the kinds described in s 494AB(1), but rather provides the Commonwealth with a defence to those claims if they are made in a court other than the High Court? If so, could proceedings instituted in the High Court in relation to the matters identified in s 494AB(1) be remitted to another court for hearing and determination without s 494AB providing an answer or defence to the claim?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

Federal Court. Combined effect of ss 360(2)(c) and (3) is that an applicant is not entitled to appear before AAT if s 359 applies to the applicant. Subsection 359C(1) applies if a person is invited under s 359 to give information and does not do so within the deadline. Section 363A provides that AAT has no power to permit a person to do a thing if a provision states that the person is not entitled to do that thing, unless a provision "expressly provides otherwise". Does s 363 "expressly [provide] otherwise" by giving AAT the power to "take evidence on oath or affirmation" or to "summon a person to appear"?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?