Case Law Updates

Federal Court. What does the requirement to consider the two limbs in cl 13.1.2(1) in Direction 79 "cumulatively" mean? If the Tribunal considers the two limbs in cl 13.1.2(1) in sequence before proceeding to consider them together and in combination, does it follow that it did not consider them "cumulatively"?

Federal Court. In the context of s 116(1)(e)(ii), can it be said that submissions to the Tribunal, viewed as a whole, are a mandatory relevant consideration, but not every aspect of those submissions can be so described? If so, for the purpose of determining whether an aspect of those submissions is a mandatory relevant consideration, is the fundamental question the importance of that aspect to the exercise of the Tribunal’s function, which will depend on the nature of the material and the circumstances of the case?

Federal Court (Full Court). Generally speaking, if a protection visa is refused, the IAA (not the AAT) has jurisdiction to review the refusal if the applicant "is" an Unauthorised Maritime Arrival (UMA). Can a person cease to be a UMA upon the grant of a visa? Does the the judgement of the plurality of the High Court in AUS17 setting out the sequence in which the IAA should approach the tasks of assessing new information for the purposes of s 473DD provide a mere guidance?

Federal Court. Do all the factors under cl 14.2(1) of Direction No 79 fall into those that generally weigh in favour of revoking the cancellation of an applicant’s visa? Did the Tribunal misinterpret cl 14.2(1) by finding that “overall”, the short time the applicant had contributed to the Australian community “balance[d]” his family ties in Australia?

Federal Court. Does a judicial review applicant need to provide extended written or oral submissions on a topic for it to be sufficiently clear that a serious representation is being made? Is it open to the Tribunal to ignore a claim made pursuant to s 501CA(4), on the basis of the lack of supporting evidence provided to support that claim? Could the risk of infection from covid-19, when weighed with other factors, provide “another reason” for revoking the visa cancellation within s 501CA(4), depending on the circumstances of the case?

High Court. Can the discretionary power conferred by s 501(2) of the Migration Act 1958 (Cth), having once been enlivened by circumstances leading to a failure to pass the character test and exercised by the Minister or a delegate or re-exercised by the Tribunal on review not to cancel a visa, be re-enlivened by those same circumstances? Can the power be re-enlivened by different circumstances?

Federal Court. AAT convened 3 hearings: 1st was adjourned shortly after starting; 2nd was adjourned after 2.5 hours due to concerns about quality of the English / Tamil interpreting; 3rd was the substantive one. In its decision, AAT said it gave the 2nd hearing "little weight", given the interpreting concerns. Did Division 4 of Part 7 of the Migration Act 1958 (Cth) require AAT to disregard the entirety of the evidence at 2nd hearing?

Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?

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?