Case Law Updates

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...'

A guidance decision indicates how the AAT (and possibly the Department) will interpret the transitional provisions for nominations made before 18 March 2018 where no corresponding subclass 457 visa application was made.

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .

According to the majority, jurisdictional error consists of a material breach of a condition of the exercise of a decision-making power. ‘Ordinarily... breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision'.