Case Law Updates

Federal Court. Does s 98: "extend to a visa applicant who has relied on a migration agent to complete a visa application form where the agent perpetrates a fraud on the visa applicant and the applicant wishes to establish that the visa application itself was consequently vitiated"; "fix a non-citizen with the consequences of a migration agent filling out a form with incorrect or incomplete information that may result in visa cancellation"?

Federal Court. Can it be said that "s 417 was exclusively intended to deal with decisions made under s 415 and that s 501J would not be engaged"? Can it be said that "a decision of the IAA was not intended to constitute a “decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa” (s 501J(2)) despite the IAA being “established within” the AAT (s 473JA)"?

Federal Court. Is a willingness to obey or disobey Australian clearly a matter within the conception of the national interest for the purpose of s 501(3)(b) of the Migration Act 1958 (Cth)? Can it be said that "it lies outside the conception of the national interest to take into account conduct which is political communication and organisation because of that feature of the conduct"?

Federal Court. Do the terms of s 75(v) of the Constitution prevent the abolition of the natural justice rule under s 501BA(3) of the Migration Act 1958 (Cth)? Are there "significant doubts concerning the ability of the applicant to seek “bail” (an order sought in criminal proceedings) in the present administrative context, particularly in light of such authorities as Al-Kateb v Godwin"?

Federal Court. Is a party entitled to apply to the Federal Court for a referral for pro bono assistance? If not, may that party nevertheless "raise the possibility of a referral and thereby invite the Court to consider the exercise of the discretion under r 4.12 of the Federal Court Rules 2011 (Cth)"?

Federal Court. For subclass 485, must the Australian study requirement be satisfied, at the latest, on the day before the application for the visa is made? Is the date of completion of a course for the purpose of the Regulations what the education provider considers it should be? Is a course completed for the purpose of the Regulations as soon as an academic supervisor has positively assessed each unit of study?

Federal Court. In the context of s 501CA(4), was the AAT bound by the sentencing remarks of the District Court? Does the decision of the Full Court in WKMZ remain authoritative despite the High Court decision in AJL20?

Federal Court (FCA). According to the FCA, the effect of cl 13.1.2(1) of Direction 79 was to oblige decision-makers "to have regard cumulatively to the nature of harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen doing so". Does cl 13.1.2(1) require decision makers to "engage in separate risk assessments for each kind of offending in which an applicant has historically engaged"?

Federal Circuit Court. Although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country, does the GTE criterion in cl 500.212(a) also encompass any positive effects of such obligations? Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

Federal Court. In determining under s 501CA(4) whether to revoke the mandatory cancellation of a visa, must decision-makers first consider the legal consequences that arise from their decision? If so, does the same principle apply "as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power"? Is there a tension between the Full Court decisions in WKMZ and Le?