Case Law Updates

Supreme Court of New South Wales (Court of Appeal). Does a court's failure to properly apply the relevant standard of proof amount to jurisdictional error?

Federal Court: This judgement is about a visa which was refused in 2017, when the "old" version of s 338(2)(d) was in effect. However, the judgement referred to the "new" version of that provision, which only came into effect in December 2018. This case illustrates how challenging it is for anyone to keep up with the pace of change in our industry. Fortunately, it seems that the reference to the "new" provision did not make a difference in the outcome of the case, given the circumstances.

Federal Court. In assessing, for the purpose of a time extension application within which to bring judicial review proceedings, whether a proposed ground of review has any merit, is the issue to be determined at a relatively impressionistic level?

Federal Court (Full Court). Can the Federal Court on judicial review determine whether the non-statutorily based administrative actions incidental to s 351 of the Migration Act 1958 (Cth), namely the processing by case officers of Ministerial intervention requests, are legally unreasonable? If so, what remedies are available?

High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.

Federal Court. The Appellant sent the Tribunal an email which stated that a document was attached. However, he forgot to attach the document. Was the Tribunal required to inquire about the missing document on the basis that it would be an obvious inquiry about a critical fact that was easily ascertainable?

Federal Court. Was it impossible for the Applicant to demonstrate the testing of his rehabilitation in the community, as he had not been in the community, with the result that the finding about lack of testing in the community was illogical?

Federal Court: A student visa holder was not enrolled in an eligible course and received a notice of intention to cancel his visa pursuant to s 116 for breach of condition 8516. A few days later, he enrolled in an eligible course, before the Minister made the decision to cancel his visa. Can re-enrolment cure a breach of condition 8516? In other words, does re-enrolment have the effect of ceasing the cancellation power from the moment of re-enrolment?

Federal Court: IAA affirmed decision to refuse Appellant a protection visa. Appellant then unsuccessfully applied to Federal Circuit Court (FCCA) for judicial review. FCCA's decision did not publish Appellant's name, in compliance with s 91X of Migration Act 1958 (Cth), which prohibits courts from publishing names of protection visa applicants. Appellant eventually appealed to Federal Court (FCA), arguing that: FCCA had constructively breached s 91X by publishing information sufficient to identify him; that breach was an appealable or jurisdictional error "because it frustrates the scheme by rendering the IAA decision nugatory..., in that it raises a new claim for protection". Should FCA issue a declaration that FCCA breached s 91X?

Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?