Case Law Updates

Federal Circuit and Family Court. The AAT's reasons copied many passages from the reasons of the very decision under review. Did the AAT fail to turn its own independent mind to the consideration of the case? Did the lack of disclosure of its intended reliance on those passages amount to a denial of procedural fairness?

Federal Court. Can it be said that the reference in para 8.3(1) of Direction 99 to "immediate family members in Australia" include children, although they need not be children? Is the question under cl 8.4(4)(d) "not concerned with relationships which may come into existence in the future but rather with those which presently exist"?

Federal Circuit and Family Court. In reviewing a refusal to grant a student visa to an Indian national who sought to study cookery in Australia, the AAT said at the hearing: "I know that 99% of the cooks in India don’t come here and study". Was the AAT's decision affected by apprehended bias?

Federal Court. Was the Tribunal required to advise the applicant of his entitlement to seek a short adjournment so that he could provide statements from one of more of his siblings in Australia?

Federal Court. As the Appellant's detention was unlawful because of NZYQ, was it legally unreasonable or irrational to assess the benefit to the community on the basis of a detention which was unlawful?

Federal Court. Were the financial capacity criterion and enrolment criterion not entirely independent, with the result that the Tribunal's finding on the latter did not render its error on the former immaterial?

Federal Court. In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415" of the Migration Act 1958 (Cth), with the result that the Minister had the power under s 417 to substitute for the decision of the Tribunal?

Federal Court (Full Court). Was the Minister’s decision under s 501BA(2) of the Migration Act 1958 (Cth) vitiated by reason of the failure to afford natural justice to the Appellant as a result of the invitations to her to provide material and the subsequent omission to have regard to the last provided piece of information?

Federal Court. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?