Case Law Updates

Federal Court. Does Direction 110 purport to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) of the Migration Act 1958 (Cth) can be exercised, such that it is inconsistent with that subsection and contrary to s 499(2), therefore being invalid?

Federal Court. If a judicial review applicant cannot afford to order the transcript of a Tribunal hearing, can they nevertheless file an affidavit to describe the evidence given at that hearing? Can the absence from otherwise detailed reasons of any reference to a submission or argument made to an administrative decision-maker indicate that it is unlikely that such decision-maker considered such submission or argument? In determining the materiality of an error, can a court assume that the administrative decision-maker approached the decision with a closed mind?

Federal Court. Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing permanent visa application. Did r 2.08A require the Minister to "ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant"? Must the ‘statement’ required by r 2.08A(1)(c) impliedly be one made in good faith?

Federal Court: the fact that an AAT applicant mistakenly gave the sponsor's details on the AAT application form under 'details of person applying for review' was not determinative. The Court held that the review application had been made by the visa applicant

Federal Court. Can it be said that the Immigration Assessment Authority's "statement that “there was no evidence before me” should be understood as meaning...

Federal Court: Federal Court had held in a previous decision that, on judicial review, "where an issue goes to a legal error relevant to the exercise of [an administrative] decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker". Here, the Immigration Assessment Authority (IAA) affirmed a delegate's decision to refuse a protection visa, as it found that Sri Lanka was safe. If Sri Lanka then becomes safe, could it be said that the IAA's decision "became" legally unreasonable?

Federal Court (Full Court). Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth), due to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Before cancelling the visa under s 501(3A), was Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision? Did 8.1.1(1)(a) of Direction 90 require the Tribunal to make its own assessment of the seriousness of the offending?

Federal Court: under the Medevac provisions, 2 doctors must assess ("either remotely or in person") a transitory person before they can be brought to Australia for medical treatment. The non-citizen argued that the review of medical records of itself constituted "remote assessment". The Minister argued that "remote assessment" must involve a consultation.

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: In Sharma, FCA had held that: if "a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence)" in the context of s 501(6)(d)(i); otherwise, "the essential facts underlying the conviction are not immune from challenge", although there is a "heavy onus on a person seeking to challenge" them. Was Sharma wrongly decided? Does Sharma apply to s 116(1)(e)? Further, are the considerations set out in Direction 65 or Direction 79 exhaustive?