Case Law Updates

Federal Court: A person fails the character test if it is reasonable to infer from an Interpol notice [IRN] that the person would present a risk to the community: s 501(6)(h). Applicant applied to FCA, seeking orders restraining Minister from refusing visa and declaring that it was not reasonable to infer risk from IRN. Minister served Notice on Applicant to produce Interpol's Response to Applicant's application for IRN to be deleted. Should Applicant's interlocutory application to set Notice aside succeed, on the basis: that Interpol's response could not be used for the purpose of s 501(6)(h); of public interest immunity?

Federal Court. The Appellant applied for an onshore partner visa more than 28 days after he last held a substantive visa. As a result, he had to satisfy Schedule 3 criteria, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. A delegate refused to grant the visa and the Appellant applied to the Tribunal for review of the delegate's decision. The Appellant submitted the sponsor was 20 weeks pregnant and argued that was a compelling reason. Did cl 820.211(2)(d)(ii) expressly or impliedly make it mandatory for the Tribunal to consider the Appellant’s future role as father to the child when born in determining whether there were compelling reasons? If not, did the Appellant, by his submissions, made his future role as a father a mandatory consideration?

Federal Court. If a party argues on appeal that they were denied procedural fairness in proceedings in the court below, is the question of whether the appeal is futile to be determined "from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review"?

Federal Court: 'I do not think that [deciding to cancel a visa under s 501(3) rather than s 501(2)] is a “decision” which is subject to judicial review'

Federal Court (Full Court). Section s 501CA(4)(a) provides that the Minister may revoke the mandatory cancellation of a visa if "the person makes representations in accordance with the invitation". Reg 2.52(2)(b) provides that representations must be "made ... within 28 days after the person is given the notice" of cancellation. Here, the notice said that representations must be "received within 28 days". Do the terms "in accordance with the invitation" allow the notice to determine what the legislation means? Do the terms "makes" and "made" mean "receives" and "received"?

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?

Federal Court (Full Court): Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made? Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given? Are decision-makers bound by policy?

Federal Court. IMMI 17/016 specified that applications for a Aged Dependent Relative (Class BU) visa had to be made by post or "delivered by courier service". Did the delivery by an employee of the Appellant's law firm satisfy the latter requirement? Or was it necessary for the delivery to be made by a private company that provides courier delivery services, with the result that the application delivered by that employe was invalid?

Federal Court: Did the FCCA inadvertently deny the Appellant procedural fairness by, among other things, saying to him that "you can't give [the FCCA] anything new"? The answered turned on what "anything new" meant in the circumstances.

Federal Court. In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Is the correct approach to consider the proposed ground of appeal at a reasonably impressionistic level?