Student: GTE and group hearings

Can it be said that, whether an applicant is a genuine applicant for entry and stay as a student is reached by reason only of the particular criteria in cll 500.212(a), (b) and (c)? Do the words in cl 500.212(a) concern only with how long a visa applicant intends to stay in Australia? In assessing whether an applicant "is a genuine applicant for entry and stay as a student", must applicants satisfy each of cll 500.212(a), (b) and (c)? Are some of the factors in Direction No 69 also relevant to cl 500.212(c)? Did the group introduction process at the start of the Tribunal hearing amount to a denial of procedural fairness? Should a litigant be expected to put on an appeal before being entitled to settled reasons from the court below?

Children’s best interests: is parent’s blame relevant?

Federal Court. Does the word "may" in s 501CA(4) give decision-makers a residual discretion to refuse to revoke cancellation even if there is "another reason" to revoke? Could Applicant's actions negate the conclusion that revocation is in the best interests of his children or reduce the weight to be placed on those interests? How should the tension between DNQ18 and PQSM regarding the materiality test be resolved? If AAT made error, was error material (and thus jurisdictional)?

Removal duty applies regardless of ITOA?

Federal Court. In deciding whether to affirm cancellation made under s 109, AAT said Department would conduct an ITOA before removing Appellant from Australia. Combined effect of ss 198 and 197C was that, if AAT affirmed Department's decision, Appellant should be removed as soon as reasonably practicable despite Australia's non-refoulement obligations. Did the removal duty have to be performed regardless of whether any ITOA process would occur?

“Encouraging” migration litigation

Federal Court. Section 486E of the Migration Act 1958 (Cth) provides that a person must not "encourage" the commencement or continuation of migration litigation if the case "has no reasonable prospect of success". Section 486F provides that a court may make a costs order against a person who breached s 486E. Can it be said that a "lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense"?

AAT required to give documents provided by 3rd party?

Federal Court. DHA cancelled visa under s 109. AAT relied on 37 documents given by a 3rd-party as evidence that Appellants were not stateless. Appellants unsuccessfully tried to obtain a copy of those documents through FOI, to the AAT's knowledge, and submitted to AAT they were not authentic and were given to exact revenge. Was AAT required under s 424A to provide Appellants with those documents or copies of them? Did AAT fail to provide a meaningful hearing under s 425?

s 46(2) of the AAT Act constitutionally valid?

Federal Court (Full Court). Is s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) which, among other things, requires courts to "do all things necessary to ensure that the matter [the subject of a certificate under s 39B(2)] is not disclosed to any person other than a member of the court as constituted for the purposes of the [judicial review] proceeding" brought under s 44, constitutionally valid?

Appeal: meaning of “removed or deported from Australia”

High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?

s 500(6H) interpreted

Federal Court. Does s 600(6H): preclude the Tribunal having "regard to" particular information, as opposed to the reception of that particular information and, if so, does it necessarily follow that "the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called"; "require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"; always require that prior notice of the source of the information to be presented orally be given?

s 426A: AAT required to consider application merits?

Federal Court. If primary and secondary visa applicants have their combined visa applications refused and they make a Tribunal application for the review of the refusals, does that constitute the making of multiple applications, one for each applicant? Is there anything in 426A "or the statutory context in which it appears which requires the Tribunal to have regard to the merits of the substantive application"? If not, does that mean that "in all circumstances no consideration of the merits is warranted"?

Apprehended bias: lay observer conceived of as a lawyer?

High Court. Should the hypothetical, fair-minded lay observer be attributed with knowledge "that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them"?

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