Case Law Updates

Were the best interests of the Appellant's child a mandatory consideration in determining under cl 820.211(2)(d)(ii) whether to "waive" criterion 3001? The Appellant and his sponsor claimed that the sponsor's pregnancy was not planned. Was it open to the AAT to find that: the conception of the child was "motivated by a desire to bolster [Appellant's] chances of securing waiver of" criterion 3001; and thus that no compelling circumstances existed? If not, was it anyway open to AAT to find that, as the couple "chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application", the AAT "does not accept that the birth ... is a compelling reason"?

Federal Court. Can it be said that, "once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case"? Were the circumstances of this case, where the applicant was a self-represented litigant seeking habeas corpus, exceptional? Can it be said that "abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame"?

High Court. Can the discretionary power conferred by s 501(2) of the Migration Act 1958 (Cth), having once been enlivened by circumstances leading to a failure to pass the character test and exercised by the Minister or a delegate or re-exercised by the Tribunal on review not to cancel a visa, be re-enlivened by those same circumstances? Can the power be re-enlivened by different circumstances?

Federal Court (Full Court). Does s 273(1) of the Migration Act 1958 (Cth) authorise the Commonwealth to refuse entry if a visitor insists on...

Federal Court (Full Court). Does the word "practicable" as used under s 501CA(3) of the Migration Act 1958 (Cth) ("as soon as practicable") mean feasible? If so, can it be said that "the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice"?

OMARA. Did the practitioner facilitate payments to a sponsor in exchange for a visa applicant’s employment and sponsorship? If so, did she act in contravention of ss 245AR and 245AS?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

Federal Court (Full Court): Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made? Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given? Are decision-makers bound by policy?

Federal Court. Can it be said that "interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings"? Would "an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to [the applicant's case] support the interrogatories" sought? If not, would an adjournment of the interlocutory application seeking interrogatory be appropriate?

Federal Court. Paragraph 116(1)(g) provided that the Minister may cancel a visa if "a prescribed ground for cancelling a visa applies to the holder". Reg 2.43(1)(p)(ii) prescribed the following ground: "in the case of the holder of a Subclass 050 ... or ... 051 ... visa - that the Minister is satisfied that the holder ... has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country". Does a material failure to comply with Direction 63, issued under s 499, lead to jurisdictional error?