Case Law Updates

Federal Court: Although this decision concerned a non-migration matter, it could be relevant to migration matters. Construction Occupations Registrar made a decision that it would only grant a licence subject to annotations. Applicant applied to FCA for judicial review of Registrar's decision under ADJR Act, but almost 6 months late. Was the fact that there was no barrier to the Applicant making a fresh licence application a factor that should go in favour of the FCA granting time extension? If so, could that same argument be made in a case where a non-citizen missed the deadline for judicial review application but is not barred by s 48 or any other provision from making a further visa application of the same class as the one that was refused?

Federal Court. Appellant had pleaded guilty to manslaughter. In personally deciding under s 501CA(4) whether there was "another reason" to revoke the mandatory cancellation of Appellant's visa, Minister found that "further" offending of a violent nature by the Appellant could result in serious physical harm to members of the Australian community. Was Minister's decision legally unreasonable in that, although Appellant's conduct led to a violent outcome (death), the nature of the conduct was not violent, as there was no intent to harm? Is a subclass 444 visa a "limited stay" visa?

Federal Court. Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90? In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?

A guidance decision indicates how the AAT (and possibly the Department) will interpret the transitional provisions for nominations made before 18 March 2018 where no corresponding subclass 457 visa application was made.

Federal Court. Was the Tribunal obliged under para 9.1(6) of Direction 90, in reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), to consider whether it was appropriate to assume that the ‘claimed harm’ would occur?

Federal Court: In Sharma, FCA had held that: if "a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence)" in the context of s 501(6)(d)(i); otherwise, "the essential facts underlying the conviction are not immune from challenge", although there is a "heavy onus on a person seeking to challenge" them. Was Sharma wrongly decided? Does Sharma apply to s 116(1)(e)? Further, are the considerations set out in Direction 65 or Direction 79 exhaustive?

Federal Court (Full Court). Is the Tribunal required to apply the Direction in force at the time when the application for merits review is made, instead of the Direction in force at the time when the Tribunal makes its decision? Can the Tribunal remit a matter for reconsideration, instead of re-exercising the discretion under s 501(1) of the Migration Act 1958 (Cth) for itself?

Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?

High Court. Practitioner used written submissions deriving from a previous client as a template for submissions sent to the IAA concerning 2 other clients. As a ground of judicial review, must fraud affect a particular duty, function, or power of the IAA? If so, were they affected for either of those 2 other clients? Was the IAA's failure to exercise the power in s 473DC to get new information, namely new submissions, legally unreasonable?

Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?