Case Law Updates

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"?

Federal Court. Despite the substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision, and that fact that both powers are to be exercised by reference to Direction 110, are those powers distinct and different in material respects?

The AAT 'had the power to extend time and ought to have treated [the review application] as a proper or at least a constructive application for an extension of time'.

Federal Court. The judicial review applicant rejected an offer of compromise by the Respondent in relation to costs which was as good as the result of the case. Did that rejection justify him paying costs incurred by the Respondent after the expiry of the offer?

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court: Federal Court had held in a previous decision that, on judicial review, "where an issue goes to a legal error relevant to the exercise of [an administrative] decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker". Here, the Immigration Assessment Authority (IAA) affirmed a delegate's decision to refuse a protection visa, as it found that Sri Lanka was safe. If Sri Lanka then becomes safe, could it be said that the IAA's decision "became" legally unreasonable?

Federal Court. In deciding whether to affirm cancellation made under s 109, AAT said Department would conduct an ITOA before removing Appellant from Australia. Combined effect of ss 198 and 197C was that, if AAT affirmed Department's decision, Appellant should be removed as soon as reasonably practicable despite Australia's non-refoulement obligations. Did the removal duty have to be performed regardless of whether any ITOA process would occur?

Federal Court (Full Court). In order to comply with s 494D of the Migration Act 1958 (Cth), does Form 956 need to state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned? Did Form 956 authorise an agent to receive communications from the Department about the revocation of visa cancellation, even though it only indicated that assistance was provided with an "application process"?

Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?

Federal Court (Full Court). Should decision-makers, when addressing the consideration in para 13.3 of Direction 79, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?