Case Law Updates

Federal Court. Is the question in para 8.3(4)(a)(i) of Direction 99 whether the person was successful in respect of issues such as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia? Did para 8.5(2)(a)-(f) exhaustively identify the relevant categories of conduct?

Federal Court. For the purpose of s 501(6)(c)(ii) of the Migration Act 1958 (Cth), can the communication of a belief, or the existence of an uncommunicated belief, be considered "present general conduct"? Further, there are 2 incidents of the common law procedural fairness rule: 1) to give an affected person an opportunity to comment on adverse material obtained from other sources; 2) to identify to them issues not obviously open on the known material. Were these incidents excluded by s 51A(1)?

Federal Court. For migration proceedings in the Federal Circuit and Family Court, is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?

Federal Court. Is a valid decision under s 501(3A) a precondition to the exercise of AAT's powers under s 501CA(4)? For the purpose of 501CA(4)(b), is AAT "confined to the narrow version of the character test in s 501(3A)(a)"? Does FCA have original jurisdiction to review a decision made under s 501(3A)? If not, does it have accrued or associated jurisdiction to review a decision made under s 501(3A) where it has original jurisdiction to review a decision made under s 501CA(4)? Is AAT allowed to take into account cl 9.4.1 of Direction 90 when considering the weight to be given to the expectations of the Australian community?

Federal Court (Full Court). Can it be said that "s 91X of the [Migration Act 1958 (Cth)] gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief"? We summarise the answer to this and several other questions.

High Court. Can it be said that the giving of the notice, particulars and invitation under s 501CA(3) of the Migration Act 1958 (Cth) "will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them, including lacking the capacity to grant an enduring power of attorney or to apply for a guardian to be appointed in relation to the notice and invitation"?

Federal Court: the respondent pleaded guilty to recklessly causing injuries to his child, which led to the refusal of his visa application; the AAT accepted the respondent's argument that he had only pleaded guilty because he thought that his child would otherwise be taken away from him; the Minister applied for judicial review...

Federal Court. The Minister found that cancellation under s 501BA(2) was in the national interest, because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons convicted of the offences involved to remain in Australia. Was that finding irrational, as the Applicant was NZYQ affected and would thus remain in Australia anyway?