Case Law Updates

Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?

Can we make applications on behalf of a sponsor without confirming we have instructions from a person with authority to bind the sponsor? Can we rely on a colleague's assertion that instructions have been received? Does the absence of professional fees waive the need for written confirmation of agreed services? Should social media interactions be added to client files? Are all employer-sponsored visa applicants prevented from paying nomination fees and charges? Can we provide colleagues or assistants with our ImmiAccount login details?

Federal Court. Was the prospect of indefinite detention a necessary and foreseeable consequence of the Tribunal’s decision which should have been considered, as the the obligation to consider it was not limited to "circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned" to their home country? In other words, does the Full Court decision in DQM18 prevail over AZAFQ to the extent of any inconsistency?

Federal Court. Is the ongoing validity of a cancellation effected under s 501(3) of the Migration Act 1958 (Cth) conditional upon timely compliance with the requirements of s 501CA? Does the use of the word 'may' in s 501CA(4) mean that the decision-maker retains the discretion not to revoke a visa cancellation even if satisfied that the non-citizen passes the character or that there is 'another reason' to revoke?

Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?

'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]'.

Federal Court: Tribunal can correct errors in its written statement of reasons in the General Division, but only if they are 'obvious', immaterial errors

Federal Court: the fact that an AAT applicant mistakenly gave the sponsor's details on the AAT application form under 'details of person applying for review' was not determinative. The Court held that the review application had been made by the visa applicant

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court. The expression “compelling reasons” in cl 802.211(2)(d)(ii) of Schedule 2 to the Regulations was not defined. Did that expression have the same meaning discussed in Plaintiff M64/2015 in the context of cl 202.222(2)? Is the genuineness of the marriage a matter that must be taken into account in determining whether there are compelling reasons for not applying the Sch 3 criteria? If not, does that mean that the Tribunal was bound to ignore the nature of the relationship?