Case Law Updates

Federal Court (Full Court). Should the Tribunal should have considered, in making a decision under s 501C of the Migration Act 1958 (Cth), "the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child", based on the FCAFC's decision in FAK19? Did anything in the nature of the FCA's discretionary power with respect to costs require any particular consideration of pro bono representation?

Federal Court (Full Court). Can it be said that, although it was open to the Minister to find that the respondent had taken no substantial steps towards rehabilitation up to the time of the Tribunal hearing, there was no rational basis for him to express views about the respondent’s circumstances at the time of his decision, 13 months after the Tribunal's decision? Is irrationality material by definition?

Federal Court. Does use of the word “means” in cl 4(1) of Direction 110 limit the definition of “family violence” to the two types of conduct as described, namely conduct that "coerces or controls a member of the person’s family" or "causes the family member to be fearful"?

Federal Court (Full Court). Can it be said that, for para 9.2(1)(a) of Direction 90, "evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in [his home country]"?

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

Federal Court. The Appellant, a subclass 485 visa applicant, had to satisfy cl 485.222 to Schedule 2 of the Migration Regulations 1994 (Cth), which read as follows: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Did the Tribunal make an error in finding that a Diploma of Marketing was not closely related to the nominated occupation of chef?

Federal Court. Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90? In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?

Federal Court. DFQ17 held that a visa refusal notification letter must clearly convey the deadline for an application for merits review in order to comply with s 66(2)(d)(ii). Here, the following sentence was found under the heading "Registries of the [AAT]": "As this letter was given to you by hand, you are taken to have received it when it was handed to you". Did the place of that sentence render the notification unclear? The letter also read: "As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)". Did the latter sentence precisely track reg 4.31(1)?

Federal Court. The judicial review applicant rejected an offer of compromise by the Respondent in relation to costs which was as good as the result of the case. Did that rejection justify him paying costs incurred by the Respondent after the expiry of the offer?

Federal Court (Full Court). Is the power conferred by s 501 to refuse to grant a visa "exercised in the performance of the duty imposed by s 65(1)(b) to refuse to grant the visa for the reason that the grant of the visa is prevented by s 501"? In BAL19, FCA decided that s 501 did not apply to protection visa applications. Was BAL19 wrongly decided? Must the power under s 501A(2) be exercised within a reasonable period of time? If so, was a period of 18 months unreasonable?