Case Law Updates

Federal Court. Does s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) involve a discretion? If so, is that discretion closely analogous discretion to the discretion under s 501(1)?

Federal Court. Did the ability lawfully to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the cancellation of a visa "expire with the expiry of what would otherwise have been the duration of the term of the visa"? In other words, can it be said that the ability to revoke the cancellation did not exist, as revocation would merely restore an already expired ('stillborn') visa?

Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?

Federal Court (Full Court). Can it be said that, "when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order [under s 477(2) of the Migration Act 1958 (Cth)] to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless”?

If an RMA's website advertised that "your case will be represented and advocated only by [an RMA] throughout the entire application process", but a client was not dealt with by an RMA, was that advertisement, combined with other factors, misleading even if the non-RMA dealing with that client was located overseas?

Federal Court (Full Court). The High Court said as follows in Viane about s 501CA(4) of the Migration Act 1958 (Cth): "That scheme necessarily requires the Minister to consider and understand the representations received". Does Viane equally apply to the consideration of any material relied on by a person who was subject to the exercise of the power under s 501(1)?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Can it be said that, although the central consideration is the information in ANZSCO, "other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task"?

Federal Court (Full Court). Can the Tribunal act on its personal or specialised knowledge and on matters which are commonly known? Does the discharge of the onus placed on the judicial review applicant to prove that a finding by the Tribunal, which required evidence but was one in respect of which there was not a skerrick of evidence, was material to the outcome require proof that the finding was erroneous?

Federal Court. Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?