Case Law Updates

Federal Court (Full Court): visa cancellation notification taken to have been received under reg 2.55(8), whether or not actually received; AAT had no discretion to accept late application under the Migration and Refugee Division

Federal Court (Full Court). After the Full Court's decision in Pearson was handed down, s 5AB was inserted into the Migration Act. Does the reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” capture aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act (NSW)?

Federal Circuit Court. Is a statutory declaration from a psychologist that is in "essentially conclusory terms and was relatively unsupported by evidence of her observations" sufficient to satisfy the requirements for a statutory declaration from a psychologist in IMMI 12/116? Was it "open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116"? Is the validity of an opinion expressed by persons specified in IMMI 12/116 a jurisdictional fact, in the sense of a fact that a court can and should determine for itself on judicial review?

Federal Court. Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing permanent visa application. Did r 2.08A require the Minister to "ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant"? Must the ‘statement’ required by r 2.08A(1)(c) impliedly be one made in good faith?

Federal Court (Full Court). FCA had said: "The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation". Did FCA engage in merits review by saying that mandatory considerations under s 501CA(4) which AAT had ignored "were not sufficient to outweigh those matters" and that AAT's error was thus immaterial? Does the materiality test threshold vary from statute to statute? Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness? Does the materiality threshold vary according to the type of decision within the Migration Act? Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'? Was it necessary, in order to establish the materiality of AAT's error, for Appellant to demonstrate by evidence what he would have done had error not been made?

Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?

Federal Court. In the context of cancellation under s 501(3) of the Migration Act 1958 (Cth), was the consequence brought about by cl 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) a mandatory relevant consideration, whether or not the Applicant made claims bearing on the latter provision?

Federal Court: a previous FCA judgement had held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). Does the same principle apply to visa cancellation revocation notices issued pursuant to s 501CA(3)?

Federal Court (FCA). Is s 23 of the Federal Court of Australia Act 1976 (Cth) a conferral of power, not jurisdiction? Does the FCA have the power to grant an injunction in an appropriate case in aid of a statutory right?

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?