Case Law Updates

Federal Court. Is there a principle of constructive refoulement in Australian law?

Federal Court. Was it legally unreasonable for the Minister to find that cancellation of the visa was in the national interest because of the risk to the Australian community, given that the applicant would be in the community in any event due to NZYQ?

Federal Court. Is it implicit in r 2.90(2) that this provision will only be satisfied if the information in question is false or misleading in a material particular? If not, is a threshold of materiality nevertheless implied in r 2.90(3)(a)? Were the matters in the previous iteration of r 1.13A(1)(d)-(h) exhaustive? If not, does the time limitation in the previous iteration of r 1.13A(3) also apply to the other types of adverse information not exemplified in r 1.13A(1)(d)-(h)? Are the matters in r 1.13A(1)(d)-(h) necessarily adverse to the person in question?

Federal Court (Full Court). Para 8.1.1(1)(a)(ii) of Direction 99 required decision-makers to consider that crimes against women "are viewed very seriously by the Australian Government". Did para 8.1.1(1)(a)(ii) require the Tribunal to consider such crimes "very seriously"? May it be "necessary for the decision-maker to take account of facts alleged to underpin a claim that non-refoulement obligations are owed where those facts are relied upon as another basis for revocation of the cancellation decision"?

Sanctions involving findings that practitioners have facilitated the provision of unlawful immigration assistance have become more and more common. OMARA: "I am satisfied that the Agent’s administrative staff have provided immigration assistance within the meaning of section 276 of the Act and that such was done under the Agent’s direction".

Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?

Federal Court (Full Court). Can the Court set the amount of costs in migration litigation at a level that exceeds or is less than the scale in Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules)? If so, does the legislative scheme impose on an applicant for costs any burden to prove that departure from the scale of costs in Schedule 2 to the GFL Rules is justified or warranted? Can a successful judicial review applicant recover the filing fee, in addition to costs incurred with professional fees?

Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?

Federal Court. In BAL19, FCA decided that s 501 and PIC 4001 do not apply to protection visa applications. In BFW20, FCA held that BAL19 was not plainly wrong and that DHA could not delay making a decision on protection visa applications on the basis that it disagrees with BAL19 and is appealing that decision. Minister then appealed FCA's decision in BFW20 and applied for a stay of FCA's orders as part of that appeal. Minister argued that, unless a stay was given, he would have to grant a visa on the basis that s 501 did not apply and that, as visa grant is not something that can be undone, the subject matter of the stay application would be destroyed. Should FCA's orders be stayed?

High Court (single Justice). Can it be said that, although "a separate visa was granted to each of the First, Second and Third Plaintiffs, nevertheless the Second and Third Plaintiffs were each a "holder" of the Protection visa granted to the First Plaintiff"? Was r 2.55 of the Migration Regulations 1994 (Cth) a prescribed method for the giving of a NOICC under s 119(2) of the Migration Act 1958 (Cth)?