Case Law Updates

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”?

Federal Court. In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". Is a reasonable conjecture applicable in the context of an assessment of the materiality of errors in the form of a failure to consider a claim or evidence in support of a claim? If so, is the standard of reasonable conjecture also undemanding in such a context?

Federal Court. Should the determination of whether a representative’s email address was provided for the purpose of one matter but not another be determined objectively, without considering the subjective intention? Can an authorisation to receive documents in relation to a business monitoring survey constitute an authorisation to receive documents in relation to a NOICC?