Case Law Updates

Federal Court. Subsection 196(4) of the Migration Act 1958 (Cth) read: "if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen". DHA cancelled Applicant's BVA under s 501(3A) and then refused to grant him a protection visa. Was he detained "as a result of the cancellation" of his visa or rather as a result of the visa refusal? Did FCA have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis on the basis that s 196(1) of the Migration Act is not inconsistent with s 23?

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

Federal Court. An error is only jurisdictional if material to the decision. Is the materiality test about whether the decision would (as opposed to could) have been different had the error not occurred? If the question is about whether the decision could have been different: is there a need to make any further assessment of the likelihood of the decision being different had the error not occurred; does that mean that an error can always be surgically removed from the decision-maker's reasons, leaving the framework surrounding it intact?

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

Federal Court (Full Court). Can it be said that "s 91X of the [Migration Act 1958 (Cth)] gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief"? We summarise the answer to this and several other questions.

Federal Court. In Brown & Makasa: delegates cancelled visas under s 501(2); AAT set aside cancellations; Minister then personally exercised discretion to cancel under s 501(2) based on the same offences; court held power to exercise discretion under s 501 based on the same offences was spent by delegates' decisions. Here, discretion to cancel under s 501(2) was enlivened by an offence, but delegate decided not to cancel. Was Minister then allowed to personally exercise discretion under s 501(2) based on a new offence?

This decision illustrates how the OMARA can use metadata to check whether applications are genuine and the potential level of involvement of practitioners in the provision of "misleading or inaccurate statements"

Federal Court. Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive? Was revocation decision a mandatory relevant consideration in the context of AAT's review of the non-revocation decision?

Federal Court. Paragraph 116(1)(g) provided that the Minister may cancel a visa if "a prescribed ground for cancelling a visa applies to the holder". Reg 2.43(1)(p)(ii) prescribed the following ground: "in the case of the holder of a Subclass 050 ... or ... 051 ... visa - that the Minister is satisfied that the holder ... has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country". Does a material failure to comply with Direction 63, issued under s 499, lead to jurisdictional error?

Federal Court. 457 nomination applicant (i.e. sponsor) was required to satisfy r 2.72(10)(f), which provided: "the position associated with the nominated occupation is genuine". Does that provision require that the position has existed in the past in the sponsoring business or that it has been filled by anyone?