Case Law Updates

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Federal Court. Appellant had to satisfy the following time of application criterion under cl 890.211 of Sch 2 to the Migration Regulations 1994 (Cth): "The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made". She also had to satisfy the following time of decision (TOD) criterion under cl 890.221: "The applicant continues to satisfy the criteria in clauses 890.211...". A delegate of the Minister refused to grant the visa and the Appellant applied to the Tribunal for merits review. Should the Tribunal determine the TOD by reference to the time of the delegate's decision? Or should it determine the TOD by reference to the time of its own decision?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

Federal Court. In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not "clearly convey" the deadlines for the respective merits review applications. Must a notification be "piecemeal, entirely obscure and essentially incomprehensible" in order to be invalid? Here, a delegate cancelled the Appellant's visa and notified him as follows under the heading "Review rights": "An application for merits review of this decision must be given to the AAT within [7] working days after you are taken to have received this letter... As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted". Did the above notice clearly convey the statutory deadline?

Federal Court. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court. Cl 13.1.2(1)(b) of Direction 79 provided that, for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively ... The likelihood of the non-citizen engaging in further criminal or other serious conduct"? Is there a "material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend"?

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Federal Court. Can it be said that, "in cases where unreasonable delay is relied upon as the basis for a writ of mandamus, the delay must have reached the critical point prior to the commencement of proceedings"?

Federal Court. Should s 347(1)(c) of the Migration Act 1958 (Cth) "be construed in such a way that where a fee reduction request is pending, there is no prescribed fee which must accompany the review application, which, in turn, must be made within the prescribed period"?

Federal Court. In the context of s 34(2)(c) of the Citizenship Act, were the Applicant’s "potential subjection to prolonged or indefinite detention, or his potential removal from Australia in breach of non-refoulement obligations ... matters that might properly be described as “direct consequence[s]” of revocation, of which the subject matter, scope or purpose of the Citizenship Act implicitly required that account be taken"? Does the same answer apply to the exercise of the discretion under s 34(2)? Can a visa that does not exist be cancelled?