Case Law Updates

Federal Court: Minister cancelled Appellant's visa and detained him. Appellant applied to FCA for extension of time to file application seeking judicial review of cancellation decision. FCA dismissed that application on 18 Dec 2019 and delivered ex tempore reasons. DHA was going to remove Appellant on 7 Jan 2020. On 6 Jan 2020, self-represented Appellant: filed late appeal of the FCA's decision (presumably to FCAFC); did not apply for an extension of time to appeal; and also applied for an urgent injunction to restrain his removal. By the date of the decision on the injunction application, 6 Jan 2020, FCA still had not published its reasons nor formally entered its order. Was injunction granted? Injunction application was decided by a different single judge of the Federal Court, not the FCAFC.

Federal Court (Full Court). Should decision-makers, when addressing the consideration in para 13.3 of Direction 79, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?

Federal Court. Appellant applied for subclass 485 visa under Graduate Work stream, but without positive skills assessment. Although this was not the case here, FCA discussed whether application would be invalid if it nominated 2 streams. Is a stream or subclass a visa class? If a person applies for a visa class, can a different class of visa be granted? Could the visa be granted under the Post Study stream? In answering the latter question, is it relevant that ImmiAccount: allowed the lodgement under the Graduate Work stream despite the fact that Appellant had answered "no" to the question as to whether he had a positive skills assessment; said that lack of a positive skills assessment "may result" in refusal?

Federal Court. Should it be inferred that the reason why the Minister determined the visa application shortly after the judicial review application was filed is that he capitulated and recognised that the Applicant would succeed in his claim to a writ of mandamus, with the result that the Respondents should pay the Applicant's costs incurred until the time of the visa grant?

Federal Court. Must there be something exceptional about that which is said to be 'in the national interest' under s 501BA(2)(b) of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at [47], the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?

Federal Court. Is a failure to disclose other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision fatal to the latter proceeding?

Federal Court. Might legal unreasonableness (in the sense that the result itself bespeaks error) be found on the basis that there is no plausible justification for the timing of a decision under s 501BA(2) of the Migration Act 1958 (Cth) that is otherwise within power?

Federal Court. In the context of s 116(1)(e)(ii), can it be said that submissions to the Tribunal, viewed as a whole, are a mandatory relevant consideration, but not every aspect of those submissions can be so described? If so, for the purpose of determining whether an aspect of those submissions is a mandatory relevant consideration, is the fundamental question the importance of that aspect to the exercise of the Tribunal’s function, which will depend on the nature of the material and the circumstances of the case?

Federal Court. In exercising his power under s 501BA, are the Tribunal’s reasons for decision always a mandatory consideration? Was it legally unreasonable for the Minister to find that the applicant's risk of recidivism was dependent on whether he would have access to mental health treatment, which in turn depended on whether he would be eligible for NDIS treatment, and yet ignore that a decision under s 501BA would render the applicant a non-permanent resident and thus ineligible for NDIS treatment?