Case Law Updates

Federal Court: Applicant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Applicant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Applicant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Applicant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Did AAT make a jurisdictional error?

Federal Court (Full Court). Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa? Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries? Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?

Federal Court. Can a person come within the exception under s 22(9)(d) of the Australian Citizenship Act 2007 (Cth) "simply by establishing some form of connection with Australia or with Australians or with something that is connected to Australia"? Is the discretion in s 22(9) broad and multifactorial? Is a person's expression of desire to live in Australia an indication of a current connection?

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

Federal Court. Is an address given on an incoming passenger card given for the purpose of s 52(3A) of the Migration Act 1958 (Cth)? Was it open to the Minister to treat an address given for the purpose of s 52(3A) as the "person's last residential address ... known to the Minister" within the meaning of r 2.55(3)(c) of the Migration Regulations 1994 (Cth)?

Federal Court. Is the Tribunal "confined to whatever may have been the issues that the delegate considered"? In other words, is the Tribunal confined to considering the same visa criteria assessed by the delegate?

Federal Court. Can it be said that s 500(6J) of the Migration Act 1958 (Cth) "does not apply to information which is sought from the applicant by the Tribunal of its own initiative, and, instead, it applies only in respect of information provided by the applicant in support of his case in chief"?

Federal Court. Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?

Federal Court (Full Court). In Katoa, the High Court held that, in determining whether to extend time under s 477A(2) of the Migration Act 1958 (Cth), the Federal Court was not limited to a reasonably impressionist level of assessment of the merits of the judicial review application. Does Katoa apply to s 477?

The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality