Case Law Updates

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

Federal Court: the NZ citizen Appellant signed papers requesting to be removed from Australia under s 199(1) of the Migration Act 1958, in which case the airfare was paid for by the DHA. However, the DHA found that the removal rendered her a 'behaviour concern non-citizen': s 5(1). As a result, she was unable to obtain a further subclass 444 visa. If the Appellant did not understand the significance of her removal request, was she really a 'behaviour concern non-citizen'?

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?

Federal Court: Tribunal can correct errors in its written statement of reasons in the General Division, but only if they are 'obvious', immaterial errors

Federal Court. Can the fact that a decision record is comprehensive, thoughtful and fully footnoted strongly indicate that an item of evidence not referred to in it was overlooked?

Federal Court (Full Court). Where the Tribunal finds that no marital or de facto relationship as defined in ss 5F and 5CB of the Migration Act 1958 (Cth) existed at any time, is the consequence that the question of family violence for the purpose of cl 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) does not arise for consideration, contrary to El Jejieh?

Full Court of Federal Court (FCAFC). Appellant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Appellant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Appellant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Appellant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Appellant argued to FCA that AAT could have made a decision before deadline and have given reasons later. FCA held AAT would have breached s 43(2) of the AAT Act, had it done so. Appellant appealed to FCAFC. With respect, does this decision stand in contrast to a previous FCAFC decision?

Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?

Were the best interests of the Appellant's child a mandatory consideration in determining under cl 820.211(2)(d)(ii) whether to "waive" criterion 3001? The Appellant and his sponsor claimed that the sponsor's pregnancy was not planned. Was it open to the AAT to find that: the conception of the child was "motivated by a desire to bolster [Appellant's] chances of securing waiver of" criterion 3001; and thus that no compelling circumstances existed? If not, was it anyway open to AAT to find that, as the couple "chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application", the AAT "does not accept that the birth ... is a compelling reason"?