Case Law Updates

Federal Court. Is an address given on an incoming passenger card given for the purpose of s 52(3A) of the Migration Act 1958 (Cth)? Was it open to the Minister to treat an address given for the purpose of s 52(3A) as the "person's last residential address ... known to the Minister" within the meaning of r 2.55(3)(c) of the Migration Regulations 1994 (Cth)?

Federal Court (Full Court). If a court treats the materiality threshold other than being very low, does it run the risk of engaging in impermissible merits review?

Federal Court (Full Court): If a student visa applicant intends to pursue PR if the opportunity presents itself, decision-makers are allowed to take that intention into consideration in assessing whether the applicant is a Genuine Temporary Entrant (GTE) under cl 500.212. That intention may be expected to normally lead to the conclusion that the applicant is not a GTE. However, such an intention does not necessarily lead to that conclusion. We explain how practitioners can use this decision to argue that a student visa applicant can be a GTE despite also seeking PR. Arguably, the same principle could apply to visitor visa applicants who also seek PR.

Federal Court (Federal Court). Once an important underpinning of the decision in relation to several elements is fundamentally altered, is it possible to have confidence in what the outcome would have been?

Federal Court. AAT affirmed delegate's decision not to revoke under s 501CA(4) the mandatory cancellation of the Applicant's visa. On 10 Feb 2020, FCA quashed AAT's decision, but reserved its judgement on whether it should issue a writ of mandamus requiring AAT to determine the application according to law. Subsection 500(6L), which applied to the Applicant at the time of the AAT's decision, provided that the delegate's decision would be affirmed by default if the AAT did not make a decision within 84 from notification of the delegate's decision. Given that, by 10 Feb 2020, the 84-day deadline had already lapsed, would it be futile to issue a writ of mandamus? Or was the AAT's decision, despite having been quashed by the AAT, nevertheless a decision for the purposes of s 500(6L), with the result that that provision no longer applies?

If an applicant nominates an occupation in a subclass 485 visa application form and then seeks to change the occupation before the decision, the change can only be made if it stems from a mistake, as opposed to a change of mind; The use of a "change of circumstance" (as opposed to an "incorrect information") form might suggest that the change stems from a change of mind

Federal Court (Full Court). Was the appellant Minister, who elected to make a personal decision under s 501CA(4) of the Migration Act 1958 (Cth), required to personally consider the respondent's representations? Or could he merely rely on a Departmental summary of such representations? If he could not rely on a summary, did he consider those representations? Which party bore the onus, on appeal, on the question of whether the Minister considered those representations?

Federal Court. If a judicial review applicant cannot afford to order the transcript of a Tribunal hearing, can they nevertheless file an affidavit to describe the evidence given at that hearing? Can the absence from otherwise detailed reasons of any reference to a submission or argument made to an administrative decision-maker indicate that it is unlikely that such decision-maker considered such submission or argument? In determining the materiality of an error, can a court assume that the administrative decision-maker approached the decision with a closed mind?

Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?