Case Law Updates

Federal Court. Did Direction 90 preclude Tribunal from considering a claim relating to extent of impediments if removed, as the claim fell outside the considerations set out in para 9.2(1)? Was the Tribunal expected to discuss whether its finding that removal from Australia was likely to result in hardship of itself was or formed part of “another reason” to revoke the visa cancellation pursuant to s 501CA(4)(b) of the Migration Act 1958 (Cth)? If so and the Tribunal did not discuss the effect of that finding, was the standard of reasonable conjecture for establishing materiality undemanding?

Federal Court. Is the phrase “extent of impediments if removed” under para 14(1)(e) is given meaning by para 14.5(1) of Direction 79? Is the “extent of impediments” if removed referred to in the chapeau to para 14.5 a mandatory consideration, by reason of para 14(1)(e)? In making a finding about the “extent of impediments”, was it mandatory to consider each of the matters in sub-paragraphs (a) to (c) of paragraph 14.5(1)? If the Tribunal made an error, should the materiality of the error be assessed as a balancing, as opposed to a binary, exercise?

Federal Court (Full Court). Did para 8.3(4)(a) of Direction 90 suggest that decision-makers cannot consider periods of absence or of limited meaningful contact arising from periods during which a non-citizen is incarcerated? Was para 8.3(4)(a) ultra vires the Migration Act 1958 (Cth)?

Federal Court. Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred? Can it be said that, under s 501(3) of the Migration Act 1958 (Cth), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test?

Federal Court. Was the duration of a relationship with a partner visa sponsor an irrelevant consideration for the purpose of cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth)? Could the registration of a de facto relationship be seen as a compelling reason to waive the criteria in Schedule 3?

Federal Court. Did the Tribunal commit a jurisdictional error in finding under cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) that the First Appellant was not a genuine applicant for entry and stay as a student, in the absence of any finding that she intended to apply for a permanent visa, did not intend to complete the course of study in question or that she was a “fake student”?

Federal Court (Full Court). Is s 29(1)(c) of the AAT Act satisfied by an implicit statement drawn by inference from the way in which the decision under review was identified or by documents which accompany the Tribunal application? Is the requirement to lodge an application within the prescribed time in s 29(1)(d) essential to its validity?

Federal Court. Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90? In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?

Federal Court. In determining whether to set aside a decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of a visa, is the Tribunal confined to the representations to the Minister? In determining through reasonable conjecture whether the Tribunal’s error in failing to consider a representation was material to the outcome and thus jurisdictional, is the standard of reasonable conjecture equally onerous?

Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?