Paul Cutler's Migration Case Law Blog
Valid Application
How hard can it be to make a valid application to the AAT? You might be forgiven for thinking that section 29(1)(c) of the AAT Act which says that an application “must contain a statement of the reasons for the application”, is clear. Despite Mr Miller's application not containing the reasons (which was agreed), a copy was later provided when the AAT requested it. That request came outside the 9...
Fairness and Security
Visa cancellations on national security grounds are rare and they often raise complex issues at the intersection of procedural fairness and secret information. SDCV v Director General of Security [2022] HCA 32 was not an exception. In 2018 (after his citizenship application was approved but before the ceremony), ASIO found that SDCV was a security risk as he had links to terrorism and had used a...
Preparation #2
The case of AEK20 v Minister [2022] FCAFC 175 is another decision that demonstrates the importance of providing evidence to support claims made in applications for revocation of a character cancellation. AEK20 moved to Australia from Samoa at age 9 in 1999. In 2012 he pleaded guilty to a murder which was committed in the course of a violent home invasion. He also gave evidence against his...
Preparation
The case of Toki v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 164 serves as a strong reminder of the importance of having corroborative evidence in an application to revoke a character based cancellation. Toki had an extensive criminal history, including murder of his de facto wife. The Minister personally decided not to revoke the visa cancellation. Toki...
Materiality
Since 2018, there have been a series of High Court cases (see Hossain, SZMTA and MZAPC) which have considered "materiality". The basic proposition is that not only do Applicants have to find a jurisdictional error, but that error has to be material. This means that the Applicant bears the onus proof on the balance of probabilities to show that there was a realistic possibility that a different...