Case Law Updates

Federal Court: AAT made jurisdictional error by characterising applicant's actions as a 9-year-old as 'offences'

Federal Court (Full Court): In considering a visa application, the Minister may get any information that he/she considers relevant. If the Minister gets such information, he/she must have regard to that information in deciding whether to grant a visa (s 56). The question to the 5 judges was whether, after getting about 800 pages of materials submitted by a non-citizen, the Minister was required to have regard to all of the relevant information.

Federal Court. Was the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was “not negligible” irrational or unreasonable, "in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant’s present state of mind or his current attitudes towards sexual offending"?

Federal Court. Minister found that child pornography offences for which Applicant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? When deciding under s 501CA(4) whether to revoke the mandatory cancellation of a visa, was Minister required to consider that Applicant also held at the same time another visa that would be cancelled by operation of s 501F(3)?

Federal Court. Is there a "lack of utility in seeking to erect some rigid distinction between so-called “claims” and so-called “evidence in support of claims”"? Can it be said that "the making of a written statement under s 368(1) is not “posterior” to making a decision" and that, rather, "the effect of s 368(6) is that a decision by the Tribunal is made “by” the making of a written statement"?

Federal Court (Full Court). 1st and 2nd Appellants made protection claims, adding their appellant children as dependents and making protection claims on their behalf. IAA's finding about children was simply: "Country information does not indicate that children are prosecuted". That finding was based on the following passage of a DFAT report: "Children are never subject to bail or fines". Was the IAA's finding a finding "about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen" and thus not supported by evidence? In order to prove an error was material and thus jurisdictional, must judicial review applicant adduce evidence in court of what would have occurred had error not been made, as held in Ibrahim? Or should FCAFC follow Nguyen instead?

High Court. Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?

Federal Court (Full Court). Child applied for child visa. Cl 101.222 of Sch 2 required approval of sponsorship. Sponsoring mother used to live with Mr M, who was not the father of the child, was in prison at TOD, was the father of 2 other children of the mother and gave her financial support. AAT had power under reg 1.20KB(12) to refuse sponsorship if it requested police check for sponsor's de facto partner and such partner did not provide it. Mother denied Mr M was her de facto partner and police check was not provided. Is residence in prison a factor as to whether a couple has a de facto relationship? Should AAT have considered s 5CB? If so, did AAT's speculation that Mr M might want to "visit" his children once released despite its finding that he was in a de facto relationship with the mother indicate it did not consider s 5CB(2)(c) and therefore s 5CB?

Federal Court. Is the conduct listed in cl 8.5(2) of Direction 110 exhaustive for the purposes of cl 8.5?

Federal Court. Can it be said that a protection "claim based on the need to support one’s family is more likely to “clearly emerge” from the material given the fundamental relevance of the matter in human terms"? Does the "review material" before the Immigration Assessment Authority include the delegate's decision?