Case Law Updates

Federal Court. In CRNL, the Full Court held that the Tribunal in that case had ascribed weight to the various considerations, having considered each in isolation, and then expressed a conclusion "without demonstrating that it actually weighed the various considerations against each other", which amounted to a jurisdictional error. Should CRNL be distinguished?

Federal Court: Appellant and wife were granted subclass 186 visas as secondary and primary applicants, respectively, and then divorced. DHA then cancelled the wife's visa under s 128 and the Appellant's visa was cancelled under s 140(1) by operation of law: "a visa held by another person because of being a member of the family unit [MOFU] of the person is also cancelled". Appellant applied for judicial review (JR) arguing: he had standing in the JR application; as he was no longer a MOFU at the time of the cancellation, s 140(1) did not apply; s 140(2) applied instead.

Federal Court: under the Medevac provisions, 2 doctors must assess ("either remotely or in person") a transitory person before they can be brought to Australia for medical treatment. The non-citizen argued that the review of medical records of itself constituted "remote assessment". The Minister argued that "remote assessment" must involve a consultation.

Federal Court (Full Court). For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the Federal Circuit Court to be "scrutinised narrowly and with an eye for error"? Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?

Federal Court: cl 485.223 requires application to be accompanied by evidence that skills assessment has been applied for. In Khan, Full Court had decided that the clause "established an objective temporal test" which does not "import notions of fairness". Here, as a result of a practitioner's mistake, the assessment was only applied for after the visa application had been lodged. Should this case be decided differently on the basis that, here: the practitioner made that mistake; and ImmiAccount "should have rejected the application" given the answer "no" to the question on the visa application form on whether the applicant had applied for an assessment?

Federal Court. Is the exercise of the power in s 501BA(2) of the Migration Act 1958 (Cth) "subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister"? Is the Minister required to consider the effect of any delay in making a decision under s 501BA?

Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?

High Court. If the Minister exercises the power under s 501CA(4) and makes a finding of fact in his reasons, must he "do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known"? If so, is there "any express requirement that the Minister disclose whether a material finding was made from personal knowledge"? If not, can it be assumed that the finding was based on that knowledge?

Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?

Q1 to the OMARA: assuming that it was not the Agent who forged the sponsor's signature and that he was not aware of the forgery, did he nevertheless facilitate the forgery by lack of diligence? Q2: assuming that the Agent's copying of the letterhead from the sponsor's website into nomination documents without the sponsor's knowledge did not involve dishonesty, was that nevertheless a misleading act? Q3: did the metadata on the Agent's file notes indicate to OMARA that those notes were not contemporaneous?