Case Law Updates

Federal Circuit Court. Clause 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) read: "the applicant is enrolled in a course of study". Can cl 500.211(a) be satisfied by reason of the applicant having completed all the course work and being awaiting the results of tests and assignments, even if the applicant is no longer enrolled in a course of study?

Federal Court (Full Court). Does s 500(6H) of the Migration Act 1958 (Cth) prevent the Tribunal from "having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"? Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?

Federal Circuit Court. Can the potential for a denial of procedural fairness arise in connection with a parent bringing an application on behalf of a child and the child not attending the Tribunal hearing?

Federal Court. In relation to Direction 79, can it be said that "the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur"? If so, must the whole case under consideration must be out of the ordinary or unusual? Can it be said that "the precise circumstances which led to the issue of materiality not being in issue may be relevant to whether the Court can proceed on the basis that there is no issue as to materiality"?

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

Federal Court. In Tanielu, the Federal Court had held as follows: "[T]o determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future". Is there a prescribed way of evaluating the risk to the Australian community?

Federal Court. Is it implicit in r 2.90(2) that this provision will only be satisfied if the information in question is false or misleading in a material particular? If not, is a threshold of materiality nevertheless implied in r 2.90(3)(a)? Were the matters in the previous iteration of r 1.13A(1)(d)-(h) exhaustive? If not, does the time limitation in the previous iteration of r 1.13A(3) also apply to the other types of adverse information not exemplified in r 1.13A(1)(d)-(h)? Are the matters in r 1.13A(1)(d)-(h) necessarily adverse to the person in question?

Federal Circuit Court. Can a document that itself is genuine meet the definition of a 'bogus document' by having been fraudulently obtained?

Federal Court (Full Court). Should different passages of written submissions be considered by the AAT it in the context of the entirety of those submissions? If the AAT considers that a factor in Direction 79 weighs strongly in favour of revoking a visa cancellation, can an error in assessing that factor be material in that, had the error not been made, the factor could weighed even more strongly in favour of revocation? Was the effect of non-revocation on the Appellant's mother relevant to cll 13(2)(c), 13.3, 14(1)(b) and 14.2(1)(b) of Direction 79?

Federal Court. In determining whether it was legally unreasonable for the Tribunal not to adjourn the review, was it relevant that: the Appellants were self-represented; there was no time sensitive aspect to the Tribunal’s review, as the visa and review applications had been on foot for a long time; the Tribunal advised the Appellants only a few weeks before the hearing that it would be considering a provision not considered by the delegate? Can a request for an adjournment be implicit, depending on the circumstances?