Case Law Updates

Federal Court. Did the Tribunal err in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”? Did para 8.3(2) of Direction 110 direct attention to the impact on the non-citizen of the loss of any other ties to the Australian community?

Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?

Federal Court (FCA). Is the FCA bound by the parties' agreement on the content of the law or facts? If the FCA declares that the Applicant is not an alien within the meaning of s 51(xix) of the Constitution, can the Applicant be removed from Australia under s 198 or detained under s 189 of the Migration Act 1958 (Cth)? Should the FCA, in the form of a declaration, "lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian"?

Federal Court: in the context of a review by the Immigration Assessment Authority, were the photos of the scarring previously shown by the Appellant at an interview to a delegate "new information" for the purposes of s 473DC of the Migration Act 1958? Did the fact that the photos were taken many months after the interview make any difference? Further, if the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions?

Federal Court. For the purpose of cl 14.5 of Direction 79, do the factors to be taken into account include any social or economic support available to the non-citizen in the country to which they would be returned in the event of non-revocation under s 501CA(4) of their visa cancellation?

Federal Court (Full Court). Does s 500(6H) of the Migration Act 1958 (Cth) prevent the Tribunal from "having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"? Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?

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. Can it be said that "the language of s 91WA(1)(a) [of the Migration Act 1958 (Cth)] refers to the provision of a bogus document in the present tense (“provides”) and, as a result, the provision, which commenced on 18 April 2015, did not apply at the time the appellant provided the bogus documents on 3 February 2015"?

Federal Court: AAT failed to disclose a document containing adverse information and its existence. That document was not protected by a non-disclosure certificate. Non-disclosure constituted a breach of procedural fairness. Was that breach material to the decision? Can it be inferred from s 359A and from the lack of reference in the Tribunal's decision record to that document that its non-disclosure was not material to the decision? Does the copying by an AAT member of the reasons of a prior member necessarily mean jurisdictional error?