Case Law Updates

Federal Court. In determining whether an unarticulated claim nevertheless clearly arose from the materials before an administrative decision-maker, is it relevant that the non-citizen was professionally represented before that decision-maker throughout the process?

Federal Court: It is often said that jurisdictional errors made by an original decision-maker are always irrelevant to a merits review application, given that the Tribunal will make a decision de novo. However, that is not always the case, as this decision illustrates.

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), can it be said that, in "taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration"?

Federal Court: "In light of the appellant’s self-represented status on his appeal, it remains to consider whether the Court should exercise its discretion to order the Minister to produce the country information so as to enable the merits of the appellant’s argument to be determined by reference to it ... Despite the urgings of the Court [the Appellant] has expressed an unwillingness to participate in the hearing of the appeal in a meaningful way". Should the FCA exercise its discretion in favour of the Appellant?

Federal Court (Full Court). On an appeal by way of rehearing, must the Court determine the correctness of the orders under appeal by applying the law as it stands at the time it gives judgment on appeal to facts that are found on the basis of all the evidence properly before it?

Federal Court. Does the Federal Court have jurisdiction to review decisions made under s 198(6) of the Migration Act 1958 (Cth)?

Federal Court: this decision provides a useful summary of previous court decisions concerning apprehension of bias and the Immigration Assessment Authority

Federal Court (Full Court): 'it will not always be illogical or irrational to place “some weight” on anonymous information'

Federal Court. The Appellant, a subclass 485 visa applicant, had to satisfy cl 485.222 to Schedule 2 of the Migration Regulations 1994 (Cth), which read as follows: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Did the Tribunal make an error in finding that a Diploma of Marketing was not closely related to the nominated occupation of chef?

Federal Court. Must there be something exceptional about that which is said to be 'in the national interest' under s 501BA(2)(b) of the Migration Act 1958 (Cth)?