Case Law Updates

High Court. In relation to s 501CA(4) of the Migration Act 1958 (Cth), can it be said that there is "no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content"?

Federal Court (Full Court): Minister was allowed to cancel a BVE under reg 2.43(1)(p)(ii) based on charges against the holder, despite the fact that those charges were laid before the BVE grant.

The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"

Federal Court. Due to s 500(6L), AAT had 84 days to decide under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa. At the time of AAT's decision, Applicant still had about 6 years of imprisonment to serve. Could AAT make a legally reasonable decision about the risk the Applicant would present to the community upon release 6 years in advance? Did AAT have "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?

Federal Court. If a claim is not clearly articulated but arises tolerably clearly or sufficiently from the materials, is the Tribunal required to consider it?

Federal Court (Full Court): The effect of s 48A(1AA) used to be that a person who relied on the Refugees Convention criterion under s 36(2)(a) for a protection visa (PV) application was barred from making a further PV application while in Australia if the original application had been refused. However, that person was not barred from making a further PV application based on the complementary protection under s 36(2)(aa). Subsection s 48A(1AA) was then amended, with the aim of changing that rule, but has the amendment achieved that aim?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court. Is it "antithetical to the appellate process [or] at odds with s 476A" for FCA to allow "a new ground not considered by the primary judge"? Further, Appellant presented his taskera (Afghan ID card) in support of protection visa application. Delegate suspected taskera was bogus and his representative provided delegate with a document from Appellant's father as evidence that Appellant's taskera was not bogus. The document the representative provided was the father's birth certificate. But representative inadvertently mischaracterised that document as the father's taskera. Given discrepancies between Appellant's taskera and his father's "taskera", delegate found the former was a bogus document. Did delegate make a jurisdictional error despite being entirely blameless? Was forensic examination of taskera irrelevant?

Federal Court (Full Court). Is s 29(1)(c) of the AAT Act satisfied by an implicit statement drawn by inference from the way in which the decision under review was identified or by documents which accompany the Tribunal application? Is the requirement to lodge an application within the prescribed time in s 29(1)(d) essential to its validity?

Federal Court. For the purpose of the old version of r 5.19(3)(d)(i), now arguably reflected in rr 5.19(5)(n) and (9)(g) of the Migration Regulations 1994 (Cth), does the circumstance that a nominator "has either generated modest profits or indeed has traded at a loss in any year or years" of itself "give rise to a conclusion that the person (nominee) will not be employed on a full-time basis in the position for at least two years, [the nominator] having contended that it would so employ the nominee and having put material before the Tribunal to that effect"?