Case Law Updates

Federal Court (Full Court): A person fails the character test under s 501(6)(b) if they have been a member of, or have been associated with, a group, organisation or person that has been involved in criminal conduct. Does the Acts Interpretation Act 1901 set up a presumption that a piece of legislation that is silent about its territorial operation, as is the case with s 501(6)(b), only applies within Australia? If so, does the object of the Migration Act 1958 rebut that presumption?

Federal Court: The FCA assumed, without determining, that 'the exercise of power under s 501A is subject to an implied obligation that it be exercised within a reasonable time'. Given that assumption, was that obligation breached by the Minister's 5-month delay in making a decision?

Federal Court. Are decision-makers required to identify the precise respects in which information is false or misleading? Can the question of whether a person provided "false or misleading information in a material particular" within the meaning of PIC 4020 be answered by a court? In order for the "false or misleading in a material particular" limb of PIC 4020 to be enlivened against a visa applicant, must the applicant have knowledge that the information is false or misleading? If so, are decision-makers required to identify knowledge as a requirement and make an express finding about the matter? Does the materiality threshold involve a question of whether the chances of a different outcome in the absence of error would have been "slim"?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?

Federal Court: the applicant's last email address provided to the Minister for the purposes of receiving documents was the one provided by the AAT

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court. The expression “compelling reasons” in cl 802.211(2)(d)(ii) of Schedule 2 to the Regulations was not defined. Did that expression have the same meaning discussed in Plaintiff M64/2015 in the context of cl 202.222(2)? Is the genuineness of the marriage a matter that must be taken into account in determining whether there are compelling reasons for not applying the Sch 3 criteria? If not, does that mean that the Tribunal was bound to ignore the nature of the relationship?

Federal Court (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?

Federal Court. The applicant was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the applicant was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the applicant failed the character test?