Case Law Updates

Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

The High Court decided whether Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] [1992]) are within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.

Were the best interests of the Appellant's child a mandatory consideration in determining under cl 820.211(2)(d)(ii) whether to "waive" criterion 3001? The Appellant and his sponsor claimed that the sponsor's pregnancy was not planned. Was it open to the AAT to find that: the conception of the child was "motivated by a desire to bolster [Appellant's] chances of securing waiver of" criterion 3001; and thus that no compelling circumstances existed? If not, was it anyway open to AAT to find that, as the couple "chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application", the AAT "does not accept that the birth ... is a compelling reason"?

Federal Court. In other to consider "new information", the IAA must, among other things, be "satisfied that there are exceptional circumstances to justify considering the new information" (s 473DD(a)). Can it be said that, if a decision-maker states that "there is already substantial material before me regarding [the applicant's claims] and I have accepted his claims", that would, "by itself, exclude the possibility that there are exceptional circumstances to justify considering 'new information'"? Or can it be said, on the contrary, that the "decision-maker's statement that [it had] accepted the claims of the ... [applicant had] a number of dimensions to it" in the circumstances of this case? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgements in Hossain and SZMTA in 2 respects?

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?

Federal Court. If a merits review (Tribunal) applicant appoints an authorised recipient, the Tribunal sends the authorised recipient a letter requesting the applicant to give information, comment or response and the authorised recipient does not inform the applicant of the existence of that letter, does it necessarily follow that: the Tribunal may make a decision without taking any further action; the applicant will not be entitled to a hearing?

Practitioners are being asked questions from several clients who are or have been in China recently or who intend to visit that country. Whether they will be allowed to enter Australia and whether their visas will be cancelled depend on the circumstances of those individuals, including their immigration status and where and when they have been in China. We have classified the circumstances of those individuals in 3 main groups, which we summarise in this article. We further discuss the legislative powers used to cancel visas and to prevent non-citizens (and even Australian citizens in some cases) from entering Australia. We also explain why, if the situation deteriorates, even permanent residency (PR) visas could be cancelled. Although PR cancellations seem unlikely at this stage, practitioners should consider warning clients of that risk and how to mitigate it.

Federal Court: In DOB18, Minister had said that DOB18 "would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa". In DOB18, FCAFC held that: Minister did not mean that such an application would necessarily be considered by a delegate, as a matter of law; on judicial review, DOB18 had to "establish that it was likely: (1) that the Minister would make the decision personally; and (2) that she or he would not consider whether the criteria in s 36(2)(a) and (aa) were met before considering any other criteria". Here, Assistant Minister (AM) made two non-revocation decisions. Can it be inferred from the fact that AM personally made two decisions that it was "likely that he or another duly authorised Minister would decide any protection visa application by the applicant"?

Federal Court: Applicant applied to FCCA for judicial review of IAA's decision and for extension of time within which to file that judicial review application. FCCA found that: extension should not be granted "on the ground of inadequate explanation alone"; there was no merit in the judicial review application. As FCCA's decision to refuse to grant time extension was not appealable, Applicant applied to FCA for judicial review that decision and had to show FCCA made a jurisdictional error. FCA held that FCCA erred in holding that judicial review application lacked merit. Was that error jurisdictional? Does the materiality test apply to the determination of whether a court made a jurisdictional error?