Case Law Updates

Federal Court (Full Court): Appellant's licence was terminated, after which he applied to the (1st) AAT, which affirmed original decision after a hearing. FCCA remitted the matter to the (2nd) AAT, which also carried out a hearing. 2nd AAT was reconstituted by another Member (3rd AAT) and then affirmed Board's decision. Was 3rd AAT required to afford the Appellant a further hearing? Could any findings by 1st AAT bind the 3rd? Was 3rd AAT allowed to consider 1st AAT's hearing transcript? Could AAT authoritatively determine the limits of its own authority?

Federal Court. In establishing a prima face case for the purpose of an interlocutory injunction, in circumstances where there is a single judge decision against it, does the existence of an appeal from that decision, "and the fact that the High Court ordered its removal, give reason to think that there may be an arguable controversy about the correctness of [that decision]"?

Federal Court (Full Court). Was it open to the non-citizen to "impugn the substantive determination [under s 430] on the ground that the Tribunal’s procedural decision [under s 426A(1A)(a)] affected the legality of the substantive determination by rendering the determination the product of a legally unreasonable process"?

Federal Court. In Thornton, the High Court held that, as the non-citizen's finding of guilt in Queensland was made without recording of a conviction, his offending as a minor was an irrelevant consideration under s 501CA(4) of the Migration Act 1958 (Cth). Should Thornton be extended to Victorian offences?

OMARA: [All expenses incurred for the [subclass 187] nomination application are the responsibility of the sponsor and cannot be transferred to the visa applicant"... "I am satisfied that the Agent’s text message conversation with [the complainant] was related to the facilitation of payments intended to be provided to the employer by the visa applicant for a nominated position. It is an offence under sections 245AR and 245AS of the Act to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event".

Federal Court. AAT wrote: "a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily". Was AAT's approach wrong because "cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and ... there is no additional requirement that the applicant be a genuine student"? As studying in Australia would necessarily prolong Appellant's stay, was it wrong for AAT to reason that appellant wanted to prolong her stay? Was AAT required to make a finding in relation to each factor in Direction No 53?

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?

Federal Court. Delegate refused to revoke mandatory cancellation of judicial review Respondent's visa under s 501CA(4). AAT remitted the matter to the Minister on the basis that it was "bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained". Was AAT subject to an investigation duty? Was AAT bound to remit the matter to the Minister?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?

Federal Court. Does Direction 110 purport to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) of the Migration Act 1958 (Cth) can be exercised, such that it is inconsistent with that subsection and contrary to s 499(2), therefore being invalid?