Case Law Updates

Federal Court (Full Court). Can a formal submission only be made that a decision of another Full Court is plainly wrong and should not be followed? Does it follow from the fact that a delegate had no power to cancel a visa under s 501(3A) of the Migration Act 1958 (Cth) that the discretion to revoke the original decision under s 501CA(4) was never enlivened? Has the Appellant's visa, which was invalidly cancelled as per the reasoning in Pearson, remained in full force and effect, whatever may be the effect of the Bill if ultimately enacted into law with retrospective effect?

Federal Court. Section 426(1A)(b) provided that if an applicant failed to appear before the Tribunal, the Tribunal could dismiss the application without any further consideration of the application or information before it. Was the power in s 426(1A)(b) a discretion which must be exercised legally reasonably?

Federal Court. In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Is the correct approach to consider the proposed ground of appeal at a reasonably impressionistic level?

Federal Court. Para 8.2(1) of Direction 90 read: "The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia..." Para 8.2(2)(b) read: "This consideration is relevant in circumstances where... there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence". Is a police report capable of being seen as an independent and authoritative source?

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)?