Case Law Updates

Federal Court. Is the question in para 8.3(4)(a)(i) of Direction 99 whether the person was successful in respect of issues such as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia? Did para 8.5(2)(a)-(f) exhaustively identify the relevant categories of conduct?

Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?

Federal Court. Is it "illogical in the ordinary sense of the word for an administrative decision-maker to state that consideration has been given to evidentiary material in circumstances where no such consideration has been given"? At what point in time must the consideration of whether cancellation is in the national interest occur, pursuant to s 501BA(2)(b)? Can materiality be considered in aggregate?

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

Federal Court (Full Court): Is the obiter dicta in MZZJO authority for the proposition that a decision-maker will necessarily make a jurisdictional error if, in assessing a protection visa application, he or she relies "solely or primarily on the absence of claims from an entry interview" whose purpose is not to assess the applicant's claim for protection?

Federal Court. DoesWaterford apply to legal advice sought to be covered by a s 438 certificate? Does s 418 expressly or by necessary implication abrogate legal professional privilege (LPP)? Did s 418(3) require the Secretary to provide to the Tribunal documents attracting legal professional privilege? Should a waiver of LPP be imputed to the Minister here? Was the fact that the Secretary considered the documents containing legal advice relevant to the review determinative of the question whether they were relevant pursuant to s 418(3)?

Federal Court. Was a visa validly granted because it was granted in accordance with the conclusions of a court, despite the fact that those conclusions were later on overturned? Must the operation of s 67(4) be read subject to the proviso that an invalid granting of a visa, even if recorded, is of no effect? Is it necessary to read into s 172(1)(c) the requirement that the granting of a substantive visa be a valid exercise of power?

Federal Court. Is it implicit in r 2.90(2) that this provision will only be satisfied if the information in question is false or misleading in a material particular? If not, is a threshold of materiality nevertheless implied in r 2.90(3)(a)? Were the matters in the previous iteration of r 1.13A(1)(d)-(h) exhaustive? If not, does the time limitation in the previous iteration of r 1.13A(3) also apply to the other types of adverse information not exemplified in r 1.13A(1)(d)-(h)? Are the matters in r 1.13A(1)(d)-(h) necessarily adverse to the person in question?

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?