“Simple inquiry” of the Registry; compliance with FCCA rules
Federal Court. The then self-represented Applicant made multiple attempts before the statutory deadline to lodge a judicial review (JR) application with the FCCA's Registry. After the last attempt, the Registry refused to accept the filing document, as it did not comply with the Federal Circuit Court Rules 2001 (Cth). Applicant eventually made a time extension application after the deadline. Before FCCA, interpreter was having difficulty understanding the Applicant. FCCA dismissed time extension application, saying nothing before it indicated it had received and refused JR application. Did the lack of a "simple inquiry of the Registry" result in the FCCA making a jurisdictional error? Was it necessary for JR application to substantially comply with the rules?
Condition 8516: term ‘continue’ interpreted
Federal Court. Condition 8516 imposed on a student visa read: "The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa". Can it be said that "the use of the word ‘continues’ in condition 8516 does not require the Appellant to be enrolled in a higher education course continuously and uninterrupted, but rather that it contemplates that it may be satisfied by enrolment at a future date"?
Double counting?
Federal Court. AAT was required to consider under s 501CA(4) whether to revoke the mandatory cancellation of the judicial review time extension Applicant's visa and to take into account the protection of the Australian community, as mandated by Direction 79. Para 14.1 of that direction required decision makers to consider the "impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour". Did the AAT engage in impermissible double counting when it considered the effect of the Applicant's offending both in the context of the protection of the Australian community and in the context of the impact on the victims of the Applicant's offending?
AAT entitled to compare Australia to Canada without evidence?
Federal Court. Was the Tribunal entitled to find, without evidence, that Canada: had a "comparable standard of support for rehabilitation services" as in Australia; "is a wealthy democratic democracy that enjoys a high standard of living, similar to Australia in many ways"?
Section 48A bar reset by ministerial intervention?
Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?
Costs not to be unnecessary obstacle to First Nations People?
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"?
Impact on business interests: self-employment
Federal Court. Did para 9.4(1) of Direction 99 apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company? If so, did the Tribunal misinterpret para 9.4(1) in circumstances where the Applicant was self-employed?
Interpreting s 473CB(1)(b)
Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?
Template submissions: fraud “on” the IAA?
Federal Court (Full Court): In SZFDE, HCA had held that a representative's conduct only invalidates a review under Pt 7 of the Migration Act if conduct is fraudulent and subverts the review. Here: 2 visa refusals were automatically referred to the IAA for review under Pt 7AA; the same representative purported to make submissions to the IAA on behalf of both visa applicants (the respondents); however, without the respondents' knowledge, those were template submissions copied from other cases, which said little about the respondents' cases, made arguments that related to other applicants and made generic arguments. The FCAFC was divided on whether SZFDE applied to Pt 7AA reviews.
When is VAC received?
Federal Court. A visa application is only made once the VAC is received. This decision confirms that VACs paid by funds transfer (e.g. BPAY) are "taken not to have been received until the payment is electronically matched to the applicant's Internet application form". As the Court interpreted the relevant legislation (including reg 2.12JA) the same way RMAs have for 16 years, there is no reason to be alarmed by this decision.