Case Law Updates

The latest AAT Bulletin contains references to several migration and citizenship review decisions.

'That there were errors in the [Minister's] decision record does not affect its character as a Pt 5 reviewable decision'

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court: 'The statutory scheme ... contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” ... to keep re-sitting the ... Test'

A Federal Court decision on subclass 457 that might also apply to subclass 482: 'it is appropriate that the Tribunal gives consideration to the correct version of [ANZSCO]... it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision'

The AAT 'had the power to extend time and ought to have treated [the review application] as a proper or at least a constructive application for an extension of time'.

Once a decision is made to cancel a visa under s 501(2) of the Migration Act 1958 based on certain factual circumstances, can a further decision be made under the same provision, based on the same factual circumstances?

A reinstatement decision by the AAT focusing only on whether the appellant had been properly notified of the hearing was 'too narrow', given that the appellant's arguments on the reinstatement application had not been so confined.

'I am satisfied that the power conferred upon the AAT under s 29(7), (8), (9) and (10) [of the AAT Act] to extend time applies in relation to applications for review of a Part 5 – reviewable decision under s 347(1)(b)(i) of the [Migration Act]'.

'it was legally unreasonable for the Tribunal to make its decision in this case without waiting for the Minister to make his decision on the nomination approval application, particularly... where the Minister had said about five weeks earlier that the application was progressing...'