Case Law Updates

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

Federal Court. Is an alien who has no legal right to remain in Australia "permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act"? If so, should a non-citizen who seeks to prevent his/her return to the country where they fear harm, but does not seek to prevent his/her removal from Australia to some other place, be seen as engineering their own release into the community?

Federal Court (Full Court). May a person "engage in some religious practices of a particular faith without being a doctrinal adherent of that faith", such as Christianity? If so, can it be said that "a persecutor might nevertheless perceive the person to be a Christian, or perceive the person’s practices to be blasphemous, and may, accordingly, persecute the person for the reason of religion"?

Federal Court. In deciding under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant's visa, the Minister found that "Australia has a low tolerance of criminal conduct for people…who have been participating in, and contributing to, the community only for a short period". Should that finding "be understood as a concrete factual finding reflective of some impossible synthesis or amalgamation of the views held collectively by the Australian community"?

Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?

Federal 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". Can it be said that, although the central consideration is the information in ANZSCO, "other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task"?

Federal Court. An error is only jurisdictional if material to the decision. Is the materiality test about whether the decision would (as opposed to could) have been different had the error not occurred? If the question is about whether the decision could have been different: is there a need to make any further assessment of the likelihood of the decision being different had the error not occurred; does that mean that an error can always be surgically removed from the decision-maker's reasons, leaving the framework surrounding it intact?

Federal Court. Does Direction 110 purport to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) of the Migration Act 1958 (Cth) can be exercised, such that it is inconsistent with that subsection and contrary to s 499(2), therefore being invalid?

This decision illustrates how the OMARA can use metadata to check whether applications are genuine and the potential level of involvement of practitioners in the provision of "misleading or inaccurate statements"

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?