Case Law Updates

Federal Court. Was it an irrelevant consideration for the Tribunal to take into account the Appellant's future intentions when determining whether he intended genuinely to stay in Australia temporarily pursuant to cl 500.212(a)(iv) of Schedule 2 to the Migration Regulations 1994 (Cth)?

Federal Court. For the purpose of cl 14.5 of Direction 79, do the factors to be taken into account include any social or economic support available to the non-citizen in the country to which they would be returned in the event of non-revocation under s 501CA(4) of their visa cancellation?

Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?

Federal Court. Was AAT required to make a finding about the actual likelihood of sponsor and partner visa applicant being half-siblings? Is the combined effect of s 88C and s 88D of the Marriage Act 1961 (Cth) that a marriage that is valid under foreign law shall be recognised in Australia as valid, unless one of the exceptions in ss 88D(2) to (5) is engaged? While a marriage is prima facie valid pursuant to s 88G(1), do s 88D and s 23B(2) prevail? Does s 12 of the Migration Act 1958 (Cth) have the effect that s 88G(1) of the Marriage Act applies to an administrative decision concerning a partner visa application, despite s 353 of the Migration Act?

Federal Court. Are the procedural fairness duties affected by whether a Tribunal applicant is represented? Is the duty to consider claims not clearly articulated, but which arise tolerably clearly from the material before the Tribunal, affected by whether a Tribunal applicant is represented? Was reliance on ss 36(2)(b) or (c) tolerably clear? Are those 2 provisions a 'time of decision' requirement?

High Court. Does an order for costs in favour of an unincorporated law firm entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm?

Federal Court. Section 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) read: "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth)?

Federal Court: s 425 required AAT to invite Appellant to appear before it to "give evidence and present arguments relating to the issues arising in relation to the decision under review". AAT invited Appellant to a hearing in relation to the review of the delegate's decision to refuse him a protection visa. At the hearing, AAT put it to Appellant that there was a trend after 2013 of reduction of violence in the Appellant's country, based on some reports. Appellant had opportunity to comment. AAT's decision record relied on a subsequent report (2016 DFAT report) which confirmed that trend, but of which Appellant was not put on notice. Was the 2016 DFAT report an "issue" arising in relation to the decision under review or was it merely a factual matter going to that issue? Should AAT have convened a second hearing?

Federal Court: Although this decision concerned a non-migration matter, it could be relevant to migration matters. Construction Occupations Registrar made a decision that it would only grant a licence subject to annotations. Applicant applied to FCA for judicial review of Registrar's decision under ADJR Act, but almost 6 months late. Was the fact that there was no barrier to the Applicant making a fresh licence application a factor that should go in favour of the FCA granting time extension? If so, could that same argument be made in a case where a non-citizen missed the deadline for judicial review application but is not barred by s 48 or any other provision from making a further visa application of the same class as the one that was refused?

Federal Court: Are the mandatory considerations arising out s 501 of the Act mandatory considerations in the context of determining whether a person is a "danger to the Australian community" pursuant to s 36(1C)(b)? Was "the possibility that the wish of the applicant ... to have a close relationship with his son would reduce the risk that he would reoffend ... relevant to the assessment that the Tribunal was required to make here"? Is the materiality test backward, or forward looking? Should "the danger referred to in s 36(1C) ... be construed to mean a very serious danger"?