Case Law Updates

Federal Court (Full Court). Section 36(1C)(b) of the Migration Act 1958 (Cth) provided: "A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds … having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”

Federal Court. The decision in Constantino from 2013 was to the effect that the whole of the qualification is to be compared with the whole of the occupation for the purpose of cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth)? Can it be said that "descending into an analysis of some of the subjects undertaken in order to find a relationship in part is not required, if the comparison undertaken of the two 'wholes' indicates the test of close relationship would not be satisfied in any event"?

Federal Court (Full Court). If the Minister failed to correctly crystallise in his invitation the deadline for making representations to seek the mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth), is that failure immaterial if the Minister considered the representations made in any event? Can it be said that an aggregate sentence of imprisonment was not a single sentence to a term of imprisonment for the purpose of s 501(7)(c), with the result that the cancellation was invalid?

Federal Court. Was it legally unreasonable for the Tribunal to refuse to wait for the outcome of merits review concerning the nomination of a position relating to a subclass 457 visa application before reviewing a decision to refuse to grant the subclass 457 visa?

Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?

Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?

Federal Court. The Full Court held in Thornton that a finding of guilt as a juvenile is effectively expunged for the purposes of considering pursuant to Direction 90 the nature and seriousness of a non-citizen’s offending. Is Thornton distinguishable if the Tribunal considers juvenile's conduct as “other serious conduct”, instead of as criminal conduct?

Federal Court. Can it be said that s 500(6H) of the Migration Act 1958 (Cth) "does not prevent an applicant who has not given two business days’ notice of proposed oral evidence prior to the commencement of the hearing, from relying upon that evidence as long as at least two business days’ notice is given prior to the resumption of the hearing following an adjournment"?

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court. Can the power in s 43(1)(c)(ii) of the AAT Act only be exercised where, to give effect to the Tribunal’s conclusions, it is appropriate to set aside the decision under review but the Tribunal is unable to make a decision in substitution for the decision set aside? Did the impossibility of being satisfied about relevant matters entitle the Tribunal to not weigh the factors in Direction 90 in the balance and remit the matter to the Department for reconsideration? Was the applicant Minister required to establish materiality of error? If so, was that burden onerous?