Case Law Updates

Federal Court (Full Court). What is the meaning of "only because" in s 140(2)(a) of the Migration Act 1958 (Cth)? If the Federal Court sets aside an AAT decision to affirm a decision made under s 140 to cancel a visa, is that visa "taken never to have been cancelled", by reason of s 114(1)? Is a visa sponsor obliged under s 104 to notify the Department about a change in circumstance? Was AAT prevented from making decision under s 140(2) by reason of s 140(3)? Was the meaning of "parent" in s 15 of the Births, Deaths and Marriages Registration Act 1995 (NSW) confined to "biological parent"?

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

Federal Court. In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata or Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"? Was the Tribunal entitled to consider an ITOA and its conclusion for the purpose of s 501CA(4)? Was Tribunal required to be satisfied of Art 1C of the Convention?

Federal Court. If the Minister relies on an Adverse Security Assessment (ASA) rather than independently assessing the risk posed by a person, does this amount to dictation? Can the Minister consider non-refoulement obligations as part of the residual discretion under s 501(2)-(3)? Is a decision under s 501(3) or 501C(4) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid? In assessing whether s 501C(4)(b) is met, is the Minister limited to considering the same sub-sections of s 501(6) which founded cancellation under s 501(3)?

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?

Federal Court: Applicant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Applicant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Applicant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Applicant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Did AAT make a jurisdictional error?

Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?

Federal Court. Was the Minister “required to consider the “direct and immediate statutorily prescribed consequences” of the s 501(3) cancellation decision he was contemplating”? If so, was the non-applicability of the relevant ministerial direction (Direction No. 79) a “direct and immediate statutorily prescribed consequence” of the Minister’s s 501(3) decision that the Minister ought to have considered”?

Federal Court. Are orders made by a superior court infected by jurisdictional error valid until set aside? Are orders made by an inferior court infected by jurisdictional error valid until set aside?

Federal Court. While the AAT was required to treat offending of the type described under cl 13.1.1(1)(a)-(b) of Direction 79 as “very serious”, did it remain for it to allocate weight in respect of such offending relative to all other relevant considerations under s 501CA(4)(b)(ii) of the Migration Act? Are cl 13.1.1(1)(b) and (d) ultra vires s 499 of the Act to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?