Case Law Updates

Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?

Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

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 Circuit 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. Is it "necessary that the [completion of the course used to satisfy the Australian study requirement] be a prerequisite to a person’s being qualified to conduct the nominated skilled occupation"? Does the fact that the course used to satisfy the Australian study requirement provided generic skills that do not directly relate to the nominated occupation mean that the course is not closely related to that occupation?

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

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

Federal Court (Full Court). Can it be said that, where "there are two sets of information, going to the safety and suitability of the place of relocation, which are contradictory and inconsistent, the decision-maker must necessarily engage in a “process of evaluation” of the “reliability” of the contradictory and inconsistent sets of information so as to reach a reasoned and reasonable conclusion as to which information, or set of information, he or she will rely upon", for the purposes of ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth)?

High Court: it was not in dispute that 'MARA may not take spent convictions into account in making [decisions under s 290(2) of the Migration Act 1958]', but the question was whether the AAT could; Discussion: are visa applicants really required to disclose convictions for which there was no sentence of imprisonment? Can the Minister take into account a visa applicant's spent conviction? Does the non-disclosure of a spent conviction really trigger PIC 4020?

Federal Court (Full Court). DHA sent visa cancellation notice on 20 Sep 2018 via email, while Respondent was in prison. Notice was handed to him on 21 Sep 2018, but stated it was delivered by email. Was such defect immaterial, as AAT calculated timeframe by reference to the latter date? Was notice defective by not specifying decision was reviewable under Part 5? Can AAT application be lodged before notice is sent? If notice is defective, does it mean there is no deadline for AAT application? Must AAT consider application without application fee?