Case Law Updates

Federal Court (Full Court). In assessing Direction 79, can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?

Federal Court. Does the IAA need to "hold an interview merely because it was minded to reach a different credibility finding from a delegate"? Are the ratio of the FCAFC's decision in DPI17 and the High Court's decision in ABT17 "confined to an instance in which the delegate’s overturned finding had been overtly and significantly based on an express assessment by the delegate of the applicant’s demeanour"?

Federal Court. The Appellant appealed to the FCA from an FCCA decision and raised a new ground of judicial review for the first time on appeal. Should the FCA refuse leave to run the new ground on the basis that, if leave were granted, the Minister would suffer as he would have no practical right of appeal to the HCA?

Federal Court. The Appellant sent the Tribunal an email which stated that a document was attached. However, he forgot to attach the document. Was the Tribunal required to inquire about the missing document on the basis that it would be an obvious inquiry about a critical fact that was easily ascertainable?

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?

Federal Court. Can it be said that "the language of s 91WA(1)(a) [of the Migration Act 1958 (Cth)] refers to the provision of a bogus document in the present tense (“provides”) and, as a result, the provision, which commenced on 18 April 2015, did not apply at the time the appellant provided the bogus documents on 3 February 2015"?

Federal Court. Subsection 196(4) of the Migration Act 1958 (Cth) read: "if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen". DHA cancelled Applicant's BVA under s 501(3A) and then refused to grant him a protection visa. Was he detained "as a result of the cancellation" of his visa or rather as a result of the visa refusal? Did FCA have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis on the basis that s 196(1) of the Migration Act is not inconsistent with s 23?

Federal Court: Can an administrative decision-maker "find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life"? Can it "be said that questions raised and conclusions reached about the stability of the relationship" are irrelevant to an administrative decision-maker's assessment of the factors in reg 1.15A(3)(d)?

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?

Practitioners are being asked questions from several clients who are or have been in China recently or who intend to visit that country. Whether they will be allowed to enter Australia and whether their visas will be cancelled depend on the circumstances of those individuals, including their immigration status and where and when they have been in China. We have classified the circumstances of those individuals in 3 main groups, which we summarise in this article. We further discuss the legislative powers used to cancel visas and to prevent non-citizens (and even Australian citizens in some cases) from entering Australia. We also explain why, if the situation deteriorates, even permanent residency (PR) visas could be cancelled. Although PR cancellations seem unlikely at this stage, practitioners should consider warning clients of that risk and how to mitigate it.