Case Law Updates

Federal Court. Does s 423A of the Migration Act 1958 (Cth) codify the circumstances in which the Tribunal may draw an unfavourable inference?

Federal Court (Full Court). Does s 500(6H) of the Migration Act 1958 (Cth) prevent the Tribunal from "having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"? Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?

Federal Court (Full Court): In Chung, FCA held that visa refusal notification under s 66 was no decision for the purpose of s 476. That led FCA to hold in BYN18 that a s 501CA(3)(a) notice was no decision for that purpose. Was BYN18 wrongly decided? If so, could Chung be revisited? In SZQDZ, FCAFC held that decision of an IMR was not a “migration decision” for the purpose of ss 476 / 477. HCA then held in SZSSJ that an ITOA was a “migration decision” for that purpose. Did SZSSJ impliedly overrule SZQDZ, as FCA held in EKU17? Is obligation under s 501CA(3) discharged if non-citizen does not have capacity to understand notification & invitation purportedly issued under it? Are there implications to or from DFQ17?

Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?

Federal Court. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?

Federal Court. The High Court's majority held in Plaintiff M1/2021 that a decision-maker must "read, identify, understand and evaluate" representations made for the purposes of s 501CA(4) of the Migration Act 1958 (Cth), even though that provision does not render every statement in a representation a mandatory consideration. Should that be contrasted with para 8.1.2(2)(b)(i) of Direction 110, which renders 'information and evidence on the risk of the non-citizen re-offending' a mandatory consideration?

If an applicant nominates an occupation in a subclass 485 visa application form and then seeks to change the occupation before the decision, the change can only be made if it stems from a mistake, as opposed to a change of mind; The use of a "change of circumstance" (as opposed to an "incorrect information") form might suggest that the change stems from a change of mind

Federal Court. Does it matter for the purpose of s 501(7)(c) the country where a non-citizen is sentenced? Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events? If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?

Federal Court. Did para 9.4(1) of Direction 99 apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company? If so, did the Tribunal misinterpret para 9.4(1) in circumstances where the Applicant was self-employed?

Federal Court. Can a failure to make an obvious inquiry amount to jurisdictional error in decisions to revoke citizenship under s 34 of the Australian Citizenship Act 2007? In assessing whether revocation would render Applicant stateless, was it legally unreasonable for Department to rely on information provided by the Ukrainian Vice Consul concerning the operation of the laws of her own country, as the Vice Consul was not a Ukrainian lawyer? Was Minister bound to engage in an “active intellectual process” in deciding whether to exercise his power under s 34(2)? We summarise answers to these and several other questions.