Case Law Updates

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

Federal Circuit Court: 'The Minister argued that the consequence of that was that the Tribunal did not need to refer to every factor mentioned in Direction No. 53. However, that is not what is meant by saying that the Direction is not a checklist'

The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"

Federal Court: appellant failed to attend Tribunal hearing; Tribunal dismissed the application for non-appearance; appellant provided a medical certificate that was not 'properly completed'; Tribunal found appellant did not have sufficient explanation for non-appearance and did not reinstate proceedings

Federal Court: 'if the evidentiary requirements were satisfied simply by a statutory declaration made by [a nurse], who is a non-treating [nurse], the words [under IMMI 12/116] in relation to treatment would be otiose'

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'