Case Law Updates

Federal Court (Full Court). Were the best interests of the children under Direction 90 to be viewed through the prism of what the appellant would do if the visa was refused? Does the fact that the Tribunal was aware that the interests of the relevant minor children differed and the extent to which they did and that the appellant did not put that difference in issue before the Tribunal mean that the Tribunal engaged in the required weighing exercise?

Federal Court (Full Court). The Minister found that child pornography offences for which the Appellant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? Was Dunn v Minister for Immigration and Border Protection [2016] FCA 489 wrongly decided?

High Court. Is there common law presumptions in Australia that "the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances" and that a statute does not impose criminal liability on the Crown?

Federal Court: In NBMZ, FCAFC held: Minister had to consider legal consequences of s 501 cancellation;  lack of reference to them led to inference they were ignored. In Taulahi, FCAFC held: NBMZ was about direct & immediate consequences (whether or not obvious) and applied to any statutory power. Did Cotterill broaden the principle in NBMZ & Taulahi to include the "real possibilities" of what might flow from a decision? Do those cases  apply to s 501CA? If so, was Minister required to consider mere possibility that Applicant was stateless and thus subject to indefinite detention? Should we infer Minister knew the way Act operates as he acknowledged Applicant could apply for protection visa and issued Direction 65, which contemplated indefinite detention?

Federal Court. Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128 of the Migration Act 1958 (Cth)?

A guidance decision indicates how the AAT (and possibly the Department) will interpret the transitional provisions for nominations made before 18 March 2018 where no corresponding subclass 457 visa application was made.

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court (Full Court). Does the word "may" in s 501CA(4) indicate a discretion? Was AAT obliged to consider best interests of minor children, even if those interests were not advanced by the appellant? If so, can it nevertheless be said that AAT "is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised"? If a child who is not a NZ citizen is granted a subclass 444 visa under s 78(1), does it immediately cease to have effect? If a person's visa is cancelled under s 501(3A), is a visa granted to their child under s 78 cancelled by operation of s 140(3)? If so, does the revocation of a visa cancellation under s 501CA(4) have the effect of nullifying a consequential cancellation under s 140(3)? Does Teoh still have work to do?

Federal Court (Full Court). What is the meaning of "only because" in s 140(2)(a) of the Migration Act 1958 (Cth)? If the Federal Court sets aside an AAT decision to affirm a decision made under s 140 to cancel a visa, is that visa "taken never to have been cancelled", by reason of s 114(1)? Is a visa sponsor obliged under s 104 to notify the Department about a change in circumstance? Was AAT prevented from making decision under s 140(2) by reason of s 140(3)? Was the meaning of "parent" in s 15 of the Births, Deaths and Marriages Registration Act 1995 (NSW) confined to "biological parent"?