Case Law Updates

Federal Court. Appellant applied for subclass 485 visa under Graduate Work stream, but without positive skills assessment. Although this was not the case here, FCA discussed whether application would be invalid if it nominated 2 streams. Is a stream or subclass a visa class? If a person applies for a visa class, can a different class of visa be granted? Could the visa be granted under the Post Study stream? In answering the latter question, is it relevant that ImmiAccount: allowed the lodgement under the Graduate Work stream despite the fact that Appellant had answered "no" to the question as to whether he had a positive skills assessment; said that lack of a positive skills assessment "may result" in refusal?

Federal Court: although legal unreasonableness is not amenable to fixed formulae, this decision contains an interesting description: 'A conclusion, whether stated definitively or arising as a matter of generalisation ... , that is inherently inconsistent with another conclusion (in the sense that at least one of them must be wrong) is one that is attended by irrationality or illogicality of the extreme kind to which the authorities refer'.

Federal Court. When a single judge of the FCA disagrees with previous decisions of single judges of the FCA, is the question whether those previous decisions should be followed out of comity, rather than whether they are "plainly wrong"? Is a translation provided to the IAA, but not to a delegate, of a document that was before the delegate "new information" for the purpose of s 473DC of the Migration Act 1958 (Cth)?

Federal Court (FCA). According to the FCA, the effect of cl 13.1.2(1) of Direction 79 was to oblige decision-makers "to have regard cumulatively to the nature of harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen doing so". Does cl 13.1.2(1) require decision makers to "engage in separate risk assessments for each kind of offending in which an applicant has historically engaged"?

Federal Court. DHA cancelled visa under s 109. AAT relied on 37 documents given by a 3rd-party as evidence that Appellants were not stateless. Appellants unsuccessfully tried to obtain a copy of those documents through FOI, to the AAT's knowledge, and submitted to AAT they were not authentic and were given to exact revenge. Was AAT required under s 424A to provide Appellants with those documents or copies of them? Did AAT fail to provide a meaningful hearing under s 425?

Federal Court. Must the deferral of the assessment of non-refoulement obligations to a subsequent protection visa application process be legally reasonable?

Federal Court. Ground 2 of the judicial review application was that, in cancelling Applicant's visa, Minister failed to have proper regard to the legal consequences of that decision, the prospect of indefinite detention and the impact on Applicant's mental health. Even if the Minister were required to respond to the interrogatory in a way that supports the submission that, contrary to s 197C of the Act, no person has ever been refouled to Iraq, would that evidence be admissible? Can the collective knowledge of the Department be imputed to the Minister personally?

Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides that "[a] person is eligible to become an Australian citizen if the Minister is satisfied that the person ... is of good character at the time of the Minister's decision on the application". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?

Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?

Federal Court. In Brown & Makasa: delegates cancelled visas under s 501(2); AAT set aside cancellations; Minister then personally exercised discretion to cancel under s 501(2) based on the same offences; court held power to exercise discretion under s 501 based on the same offences was spent by delegates' decisions. Here, discretion to cancel under s 501(2) was enlivened by an offence, but delegate decided not to cancel. Was Minister then allowed to personally exercise discretion under s 501(2) based on a new offence?