Paul Cutler's Migration Case Law Blog
Giving of documents
The giving of documents to a visa holder which relate to the cancellation of their visa is more complex than it might seem.
Basically the options are by giving notice under section 494A (using one of the methods in s 494B) which then enliven the deeming provisions in s 494C. The other alternative is rely on regulation 2.55(3)(c) and the deeming in reg 2.55(7).
There are some subtleties in the requirements of those sections including the difference between an address “known to” and one “provided to” the Minister.
The argument that regulation 2.55 was inconsistent with 494A (and therefore invalid) failed in Minister v EVE21 [2023] FCAFC 91. However, Perram J did accept that in some circumstances (just not the current one) there would be inconsistency. There have been other cases where this inconsistency and invalidity have been argued with mixed success.
The other interesting argument in the case were about whether a prison’s PO Box is the PO Box of the prisoner? It is. There was also a brief discussion about whether a prison can be a residential address. Some of the UK cases suggest that there is an element of “voluntary” in determining someone’s residential address.
It’s always a good idea with these cases to check if the service provisions have been complied with.
Creative commons acknowledgment for the photograph.
Allegedly a victim of fraud
The activities of the (former) firm S&S Migration are so infamous that the Full Federal Court judgment in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 commences with: "...this is yet another case arising from the carnage left by the fraudulent conduct of S & S Migration." It was not in dispute that the Applicant's visa...
Complete but not clear
The combined effect of section 66(2)(d) of the Migration Act and the associated regulations is that there is a strict (non-extendable) 21 day period in which an application for merits review can be lodged with the AAT. If an application is made outside of that time the AAT is without jurisdiction. While that seems simple enough there are a number of Full Court cases where it has been argued that...
Jurisdiction and the risotto
Much to the frustration of many clients, fact finding by the AAT is not normally able to be challenged in judicial review proceedings in the courts. One very limited exception to that proposition is if the fact finding is "irrational, illogical and not based on findings or inferences of fact supported by logical grounds". Those grounds are very difficult to make out. There are at least two...
Not necessarily de facto
Makhmudkhodjaeva v Minister [2020] FCAFC 88 is a recent Full Court case about refusal to approve a sponsorship in relation to a child visa. If the child's mother had a partner (either de facto or by marriage) then that person (Mr M) would need to meet the character test. The interesting issue in this case is that the mother denied she was in de facto relationship despite the facts that: ...