Case Law Updates

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court. In the context of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), can it be said that, since the grant of a student visa would allow the appellants to stay in Australia for only a specified period, a mere change of plans from a visitor visa to make an application for a student visa could not provide evidence of an intention to stay permanently or indefinitely in Australia?

Federal Court (Full Court). Was the consequence of s 347(1)(c) of the Migration Act 1958 (Cth) and r 4.13(4) of the Migration Regulations 1994 (Cth) that an amount of 50% was payable whether or not the “Request for Fee Reduction” was ultimately successful? If a Tribunal application is not accompanied by the application fee, does the Tribunal have a duty to review the decision?

The AAT 'had the power to extend time and ought to have treated [the review application] as a proper or at least a constructive application for an extension of time'.

Federal Court. Can it be said that "information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual" and therefore that country information may include "personal information" for the purposes of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at [47], the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?

Federal Court. Does the fact that the grant of an injunction would restrain the enforcement of the law by preventing officers of the Commonwealth from performing a statutory duty, and thereby frustrate the legislative scheme of the Migration Act 1958 (Cth), provide a strong reason not to grant an interlocutory injunction in the present case?

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: 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?

High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?