Case Law Updates

Federal Court (Full Court). In relation to the assessment of para 14.2(1)(b) of Direction 79, can it be said that the "“nature” of a person’s ties to family members in Australia – and the weight that should be afforded to that matter – can logically be affected by the existence of relationships with other family members who do not live in Australia"?

Federal Court. Condition 8516 imposed on a student visa read: "The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa". Can it be said that "the use of the word ‘continues’ in condition 8516 does not require the Appellant to be enrolled in a higher education course continuously and uninterrupted, but rather that it contemplates that it may be satisfied by enrolment at a future date"?

High Court. Does the practice in the Federal Court (FCA) of hearing an extension of time application together with argument on the substantive application require the FCA to avoid "conflating the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to ... what was necessary in the interests of the administration of justice"? If so, is the FCA limited to an impressionistic assessment of the merits of the substantive application?

Federal Court. Did para 9.1(2) of Direction 90 "require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct"?

Federal Court. If a conviction forms the basis for a visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and the cancellation is then revoked under s 501CA(4), is a decision-maker prevented from using that same conviction as the basis to cancel the visa under s 501(3A)? Did s 501(3A) require an act of the Minister by which a visa was cancelled? Or was the provision rather self-executing?

Federal Court (Full Court). Is the ambit of a review by the Tribunal "necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review"?

Federal Court (Full Court). Although referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion, did the Tribunal ask itself the correct question when it searched for "another reason" under the Direction, as the Direction itself referred to that question as involving a discretion? If not, can it nevertheless be said that "the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision"?

Federal Court. Is there only one DFAT report which must be taken into account in order to comply with Direction No 84, given that the most recent report said that that it replaced the previous report?

Federal Court. Can it be said that "any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest"? If so, does it follow that, "in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest"?

Federal Court (Full Court). "Para 14.1(3) of Direction 79 stated that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request "or can be clear from the facts of the case". Did Direction 79 impose an obligation on the AAT to recognise and understand that a non-refoulement claim which, if accepted, would satisfy s 36 of Act, arose so as to evaluate whether to defer an assessment of the claim to a visa application process, instead of treating itself as obliged to defer that assessment? If so, did that obligation include such a claim that clearly or squarely arose from the material?