Case Law Updates

Federal Court. May a jurisdictional error in the form of a breach of procedural fairness "be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given"?

Federal Circuit Court: the reference to 2 years under reg 1.15AA 'is not linked to “the assistance” but... to the “medical condition”'

Federal Court (Full Court). The Full Court summarised the legal principles concerning s 501CA(4)(b)(ii), which provides as follows: "The Minister may revoke the original decision [to mandatorily cancel a visa under s 501(3A)] if ... the Minister is satisfied ... that there is another reason why the original decision should be revoked".

Federal Court: Appellant was granted a subclass 820 visa and then claimed to have suffered family violence committed by the sponsor. Appellant sought to rely on family violence (FV) provisions for subclass 801 visa. Could the FV provisions be satisfied if there never was a relationship between the sponsor and the Appellant? If not, could they be satisfied if the relationship was not spousal or de facto in nature? Was AAT bound to accept that the relationship existed at the time of application, given that the delegate had been satisfied that the relationship existed at that point in time?

High Court. Was the political question posed by cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (whether the grant of a protection visa was in the national interest) answered by the decision-maker in a manner inconsistent with PIC 4001 and s 501 of the Migration Act 1958 (Cth), as the Minister found PIC 4001 to be satisfied and disavowed reliance on s 501, thus rendering the visa refusal invalid?

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Mandatory cancellation under s 501(3A) requires that (a) the non-citizen not pass the character test and (b) be serving a sentence of imprisonment at the time of cancellation. Federal Court: it is irrelevant when the sentence that enlivens s 501(3A)(a) is imposed or completed; the sentence enlivening s 501(3A)(a) does not need to be the same sentence enlivening s 501(3A)(b)

Federal Court. Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred? Can it be said that, under s 501(3) of the Migration Act 1958 (Cth), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?

Federal Court. The appellant answered a question in a student visa application form, indicating he had never had previous visa refusals. In reality, he had had student visa refusals. Was it unnecessary for the Tribunal to explain in any detail the basis upon which it considered the impugned answer was relevant to cl 500.212 (GTE criterion)? Did PIC 4020(5)(b) require determination of whether cl 500.212 was satisfied? May an applicant's provision of such false or misleading information be a 'relevant matter' within the meaning of cl 500.212(c)?