Case Law Updates

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?

Federal Court: this decision provides a useful summary of previous court decisions concerning apprehension of bias and the Immigration Assessment Authority

Federal Court (Full Court): the Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). The Appellant argued to the Full Court that a suspended sentence is not a sentence for the purposes of the definition of a "substantial criminal record" under s 501(7).

Federal Court: the Federal Circuit Court (FCCA) made an interlocutory decision to dismiss the Applicant's judicial review application, despite the fact that the Applicant had informed the FCCA that his lawyer had withdrawn from his case the day before the FCCA hearing. Did the Applicant constructively apply for the FCCA hearing to be adjourned by informing it about the claimed lawyer withdrawal? If so, does the same principle apply to AAT hearings?

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court: the NZ citizen Appellant signed papers requesting to be removed from Australia under s 199(1) of the Migration Act 1958, in which case the airfare was paid for by the DHA. However, the DHA found that the removal rendered her a 'behaviour concern non-citizen': s 5(1). As a result, she was unable to obtain a further subclass 444 visa. If the Appellant did not understand the significance of her removal request, was she really a 'behaviour concern non-citizen'?

Federal Court: the Appellant made a Tribunal application but mistakenly answered in the application form that he held a refugee visa, with the result that the AAT's online system did not ask for payment of the application fee. That fee was only paid after the timeframe for making a valid application. The AAT recognised the mistake was understandable given how its online system was designed, but nevertheless found it had no jurisdiction. Was the review application 'accompanied by the prescribed fee'?

Federal Court: according to a previous decision of the Full Court in SZQDZ, an Independent Merits Review was not a "migration decision" for the purposes of s 477 of the Migration Act 1958. A subsequent decision of the High Court in SZSSJ held that an International Treaties Obligations Assessment was a "migration decision". The question to the FCA was whether SZSSJ overruled SZQDZ to the effect that a Protection Obligation Evaluation was a "migration decision", thus reviewable by the Federal Circuit Court and with a 35-day filing limitation.

Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a  single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?

Federal Court (Full Court): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate