Best interests of unborn child?
Federal Court: In deciding whether to affirm a decision to refuse a visa under s 501(1) of the Migration Act 1958 (Cth), the AAT was bound by Direction No 65, cl 11.2 of which made it mandatory for decision makers to consider the best interests of minor children affected by the decision. Was the AAT bound to consider the best interests of the Applicant's unborn child? Note: cl 11.2(4) of Direction No 65 was almost identical to cl 9.2(4) of the current direction, namely Direction No 79.
When admin decision maker chooses to give reasons
Federal Court: There is no common law duty on administrative decision-makers to provide reasons for their decisions. Thus, in the absence of a statutory duty, those decision-makers are not required to provide reasons at all. However, if an administrative decision-maker chooses to provide reasons in circumstances where they are not obliged to do so, can a court on judicial review draw an inference from the fact that the decision record is silent about a particular consideration that such a consideration was not taken into account?
Statutory interpretation: a modern approach
High Court: Although this decision concerned criminal law, it is arguably relevant to migration matters as it provides a summary of modern principles of statutory interpretation.
Can admin decision-makers accept hearsay?
Federal Court: "the information before the Tribunal ... contained some hearsay rather than firsthand information". Can administrative decision-makers accept hearsay?
What are the “expectations of the Australian community”?
Federal Court (Full Court): Direction 65, which for the purpose of this decision was identical to Direction 79, required the Tribunal to take into account a number of considerations in deciding whether to refuse a visa under s 501 of the Migration Act 1958 (Cth). One such consideration was labelled the "expectations of the Australian community". Are those expectations pre-determined by the direction itself as deemed expectations? What is the content of those expectations?
Direction 65: interpreting cl 14.4(1)
Federal Court: In an application for merits review to which the 84-day deadline under s 500(6L) of the Migration Act 1958 (Cth) applies, should the reasons provided by the AAT be scrutinised less rigorously than would otherwise be the case? Was the Tribunal required to expressly put the Applicant on notice that it would consider the impact on victims that could flow from a decision to revoke the visa cancellation, pursuant to cl 14.4(1) of Direction 65? Did the AAT misinterpret cl 14.4(1)? Note: cl 14.4(1) of Direction 79 is identical to cl 14.4(1) of Direction 65.
Direction 65: interpreting cll 13.1.1(1)(b) and 14.1(2)
Federal Court: AAT affirmed non-revocation of visa cancelled under s 501(3A) of the Migration Act 1958. AAT was bound by Direction 65, cl 14.1(2) of which was identical to cl 14.1(2) of Direction 79. Was it necessary for AAT to sever the following part of cl 14.1(2) in order to align that paragraph with s 197: "Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists"? Did AAT misinterpret cl 13.1.1(1)(b), which is identical to cl 9.1.1(1)(c) of Direction 79?
Procedural fairness owed under s 46A?
Federal Court (Full Court): This decision could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application. Question to the FCAFC: Is the exercise of the revocation power in s 46A(2C) subject to procedural fairness? Was the Appellant afforded procedural fairness in the exercise of that power? Did the Minister make a personal procedural decision to consider the exercise of his powers under s 46A? Was a sufficient interest of the Appellant affected?
MARA: “prolonged failure to engage with [MARA]”
Agent had been suspended for 3 months and until certain conditions were met. As MARA received no communication from the Agent, the suspension continued to be in effect. MARA then commenced an investigation and found that: Agent had "disengaged from the migration advice profession"; his "prolonged failure to engage with [MARA] and endeavour to comply with the conditions imposed on his suspension appears to demonstrate a blatant disregard for [MARA], the migration advice regulatory scheme, and his former clients".
s 140(1): cancellation of visa held because of being a MOFU
Federal Court: Appellant and wife were granted subclass 186 visas as secondary and primary applicants, respectively, and then divorced. DHA then cancelled the wife's visa under s 128 and the Appellant's visa was cancelled under s 140(1) by operation of law: "a visa held by another person because of being a member of the family unit [MOFU] of the person is also cancelled". Appellant applied for judicial review (JR) arguing: he had standing in the JR application; as he was no longer a MOFU at the time of the cancellation, s 140(1) did not apply; s 140(2) applied instead.