Case Law Updates

Federal Court. Is the grant of an injunction that interfered with the performance of the statutory duty to remove unlawful non-citizens from Australia as soon as practicable exceptional, therefore requiring there to be a strong case for the making of the order?

Federal Court. Can it be said that, "where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category"?

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?

Federal Court: when considering whether a position is genuine as part of a nomination application under r 2.72, is Minister obliged to consider the tasks of ANZSCO unit group? If not, is Minister at least allowed to consider those tasks? If Tribunal refuses to grant visa on the basis of its refusal to approve nomination and the nominator wins on judicial review so that nomination is remitted back to the Tribunal, should the Court dismiss the visa applicant's judicial review application as the visa applicant still did not have an approved nomination?

Federal Court (Full Court). Can it be said that, where "there are two sets of information, going to the safety and suitability of the place of relocation, which are contradictory and inconsistent, the decision-maker must necessarily engage in a “process of evaluation” of the “reliability” of the contradictory and inconsistent sets of information so as to reach a reasoned and reasonable conclusion as to which information, or set of information, he or she will rely upon", for the purposes of ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth)?

High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?

Federal Court: Do practitioners have a 'right' to object to unfair questions at Tribunal hearings? Must joint liabilities be owed between applicant and sponsor or must they be owed by them, jointly, to others? If applicant and sponsor owe financial obligations to each other, can that tell against the existence of a relationship? Can the gifting of a car tell against the pooling of financial resources? Can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?

Federal Court. In order for an error (or errors) in the form of legal unreasonableness in a decision-making process to be labelled "jurisdictional", is it necessary for the materiality of the error to be established as a separate, additional element? Does Makasa apply to s 501(1)? In exercising the power under s 501A(2) to override a decision of the Tribunal, can the Minister rely on matters that were known to him at the time of the Tribunal hearing but not put by him (or on his behalf) to the Tribunal?

Federal Court. Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision? Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"? Once significant delay is established, does the evidentiary onus shift to the Minister?

Federal Court. The Tribunal obtained the sponsor’s movements record after the hearing and took that evidence into account in affirming the decision without giving the appellant an opportunity to be heard about the evidence of the sponsor’s travel and the couple’s time apart in relation to whether compelling reasons existed. The movement records had a direct bearing on the veracity of the appellant’s "compelling reasons" claim. Did that constitute a failure to comply with ss 359A or 360 of the Migration Act 1958 (Cth)?