Case Law Updates

Federal Court. Interpol Red Notice (IRN) was issued in relation to Applicant, stating he had been charged. A person fails the character test by reason of s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". On the basis of the IRN, Minister personally refused to grant visa under s 501(1), stating: "It is therefore not without some substance that [the applicant] would be under suspicion of these charges". Does use of the word “would” in s 501(6)(h) require more than mere suspicion? Could it reasonably be inferred from IRN that Applicant would present a risk to the Australian community?

The Full Court of the Federal Court has unanimously held that 'Brown No 2 was wrongly decided and should not be followed'

High Court (single Justice). In determining whether to grant the plaintiff a time extension to file his judicial review application, does he disclose an arguable basis for relief in arguing that the delegate made an error in treating a Code 35 NPC as not satisfying the request?

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?

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

Federal Court. Did the Tribunal commit a jurisdictional error in finding under cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) that the First Appellant was not a genuine applicant for entry and stay as a student, in the absence of any finding that she intended to apply for a permanent visa, did not intend to complete the course of study in question or that she was a “fake student”?

Federal Court (Full Court). Is s 29(1)(c) of the AAT Act satisfied by an implicit statement drawn by inference from the way in which the decision under review was identified or by documents which accompany the Tribunal application? Is the requirement to lodge an application within the prescribed time in s 29(1)(d) essential to its validity?

Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?

Supreme Court of New South Wales. Is the question of whether, in applying a legislative power or discretion that does not infringe on the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law? If not, does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?

The provision of false information was irrelevant for the purposes of determining whether a passport was a bogus document under s 5(1) and thus whether a protection visa should be refused under s 91WA of the Migration Act 1958