Case Law Updates

Federal Court. Can it be said that, as the visa was cancelled on the basis that the applicant failed the character test arising from the application of the objective standard that he has “a substantial criminal record” in s 501(6)(a), "the subjective standard referred to in paragraph 8.1.1(1)(b)(iii) does not and cannot apply"? Is what was said in an earlier judgment involving the same applicant and Minister "material" before the Tribunal on which it could base its findings?

Federal Court. Does the AAT Act "require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant"? Can it be said that "to conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case"?

Federal Court. Does the term "identity" in s 116(1AA) of the Migration Act 1958 (Cth) have a stable meaning, instead of "ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history"? The appellant's half-brother's visa would be automatically cancelled under s 140(1) if the appellant's visa was cancelled. Was there a denial of procedural fairness to the appellant, as he could have submitted a statement from his half-brother or asked the Tribunal to call him?

High Court. Does the information to be provided in compliance with s 29(1)(c) of the AAT Act need to be information of the slightest assistance to the Tribunal or any other party to the proceeding? Is non-compliance with s 29(1)(c) intended to result in the invalidity of a Tribunal application?

Federal Court. Can it be said that "the language of s 91WA(1)(a) [of the Migration Act 1958 (Cth)] refers to the provision of a bogus document in the present tense (“provides”) and, as a result, the provision, which commenced on 18 April 2015, did not apply at the time the appellant provided the bogus documents on 3 February 2015"?

Federal Court. In Garland, the Full Court said in relation to para 8.1.1(1)(b)(ii) of Direction 99 that, "where the Direction uses the phrase “vulnerable members of the community” it means members of vulnerable groups in the community; it does not encompass an individual who has physical characteristics or particular circumstances that make them vulnerable vis-à-vis a particular perpetrator". Would the same reasoning apply if the Tribunal said that an applicant's "sheer size would have been most intimidating to the victim"?

High Court. Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?

High Court. In relation to s 501CA(4) of the Migration Act 1958 (Cth), can it be said that there is "no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content"?

Federal Court. Is Direction 99 inconsistent with s 501CA(4) of the Migration Act 1958 (Cth) "because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]"?

Federal Court. Can it be said that, "by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation)"?