Case Law Updates

Federal Court. Can it be said that, "in order to raise a relevant issue under cl 9.2 there needs to be some evidence of the relevant support in the home country"? For the purpose of cl 9.2, is it "necessary that there be some evidence or material to demonstrate there is some qualitative difference between the circumstances in Australia and those in the applicant’s home country"?

Federal Court. Did visa subclass 186 "contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant"? Can an employer correct an erroneous nomination withdrawal?

Federal Court. Is the materiality test question whether the result, in the absence of error, was inevitable? In assessing materiality, would a court be usurping the statutory task entrusted to the decision-maker if it formed its own view as to what the result should have been in the absence of error?

Federal Court (Full Court). In reviewing a non-migration decision of the respondent, the Tribunal copied 64 of the 67 paragraphs of the respondent's submissions without attribution or saying that it agreed with what the respondent had submitted. Did the Tribunal fail to properly exercise its jurisdiction to conduct a "review" of the kind it was required to conduct?

Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?

Federal Court. Where the Minister is statutorily obliged to provide a statement of reasons for his decision, should he "provide a rational and intelligible explanation as to why he chose to give greater weight to some material over other material where it relates to a significant issue which has been the subject of detailed submissions"? Can it be said that "it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because that manner of reasoning would be permissible"?

High Court: By a 6:1 majority, the HCA decided that the "Chorley exception" to the rule that self-represented litigants cannot recover costs for their own time spent on litigation is no longer part of our common law. The "Chorley exception" allowed self-represented solicitors to recover self-representation costs. But most importantly, the majority questioned whether an incorporated legal practice offering services to third parties could recover costs for work of its sole director and shareholder. Does the same question arise for immigration assistance?

High Court. Can it be said that, while "the broad principle is that the Courts ... must ... administer justice in public", the exceptions to this broad principle are "themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done"?

Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?