Case Law Updates

Federal Court. If primary and secondary visa applicants have their combined visa applications refused and they make a Tribunal application for the review of the refusals, does that constitute the making of multiple applications, one for each applicant? Is there anything in 426A "or the statutory context in which it appears which requires the Tribunal to have regard to the merits of the substantive application"? If not, does that mean that "in all circumstances no consideration of the merits is warranted"?

Federal Court: Appellant's previous counsel made a "deliberate decision to not argue before the [FCCA ground 1 now relied upon]". Was it "unjust for Appellant to be bound by error made by counsel"? Ground 2: Appellant applied to AAT and gave a Gmail address for correspondence. AAT sent email to the Gmail address and Appellant replied from it, CCing a Hotmail address. Appellant then sent AAT several emails from Hotmail, but never formally indicated a change of email address. AAT sent invitation to comment on adverse information to Gmail address, but Appellant claimed he did not receive it. Did the Hotmail address fit the description of "last email address ...  provided to the Tribunal", under s 379A(5)(d)? If so, did it also fit the description of "provided to the Tribunal ... in connection with the review", under s 379A(5)(d)? Is it essential that a "change of contact details" form be completed?

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?

Federal Court. For the purposes of s 423A, is a “claim” to be equated with a singular factual allegation? Were the “clear particulars” the Tribunal was obliged to provide to the appellants under s 424A “clear particulars” of the "information that the Tribunal considered rightly or wrongly would be a reason or part of a reason for affirming the decision under review"?

High Court. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid because it is not supported by a head of Commonwealth legislative power or because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

Federal Court: Due to s 500(6L), AAT had only 84 days to decide whether to affirm delegate's decision. Applicant asked for adjournment in order to obtain representation. AAT's refusal to adjourn was legally unreasonable. With respect, in answering whether that error was material, did the FCA echo what the writer had written in an article dated 5 Oct 2019: "is it not the case that it is not possible to rule out that the placing of even more weight to [a consideration] could have tipped the scales in favour of revocation?"

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court. In the context of s 501BA(2) of the Migration Act 1958 (Cth), was it legally unreasonable for the Minister not to honour...

Federal Court: when considering whether a position is genuine as part of a nomination application under r 2.72, is Minister obliged to consider the tasks of ANZSCO unit group? If not, is Minister at least allowed to consider those tasks? If Tribunal refuses to grant visa on the basis of its refusal to approve nomination and the nominator wins on judicial review so that nomination is remitted back to the Tribunal, should the Court dismiss the visa applicant's judicial review application as the visa applicant still did not have an approved nomination?