Case Law Updates

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?

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?

Federal Court. The grounds of appeal formulated by the self-represented appellant "do not appropriately articulate any appellable error by the primary judge. On their face, they simply ask this Court to detect jurisdictional error in the Tribunal’s decision". Would it be wholly inappropriate to read those grounds of appeal "as asserting that the learned primary judge erred by failing to detect the jurisdictional errors identified in grounds one and two"?