Did practitioner act in contravention of ss 245AR & 245AS?

OMARA. Did the practitioner facilitate payments to a sponsor in exchange for a visa applicant’s employment and sponsorship? If so, did she act in contravention of ss 245AR and 245AS?

Unlawful non-citizen released from immi detention

Federal Court. Minister: cancelled Applicant's child visa under s 501; detained him under s 189; refused to grant him a protection visa, despite finding he was owed protection; declined to consider granting him a visa under s 195A. Minister accepted that, from 26 July 2019, he was required to remove Applicant from Australia as soon as reasonably possible, due to s 198(6). Until the FCA decision on 11 Sep 2020, Minister had not removed him, but kept him detained. FCA held that, although s 196(1)(a) says an unlawful non-citizen (UNC) must be kept in detention "until" he/she is removed under s 198, detention is unlawful after the first point at which point removal becomes reasonably possible. Minister said that removal was not reasonably practicable, as that would breach international non-refoulement obligations. FCA held that that breach was a moral, but not a legal, justification, given s 197C. As a result, FCA ordered Applicant's release, despite the fact he still was a UNC.

Children’s best interests: is parent’s blame relevant?

Federal Court. Does the word "may" in s 501CA(4) give decision-makers a residual discretion to refuse to revoke cancellation even if there is "another reason" to revoke? Could Applicant's actions negate the conclusion that revocation is in the best interests of his children or reduce the weight to be placed on those interests? How should the tension between DNQ18 and PQSM regarding the materiality test be resolved? If AAT made error, was error material (and thus jurisdictional)?

Materiality: where decision was the only legally available decision

Federal Court. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?

Does s 501CA(4) require consideration of non-refoulement obligations?

High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?

Whether citizenship revocation would result in statelessness: jurisdictional fact?

Federal Court. Paragraph 34(3)(b) of Citizenship Act 2007 provided citizenship revocation could not occur if "the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country". Is the question whether Applicant would become “a person who is not a national or citizen of any country” a jurisdictional fact, so that the Court can and should answer that question for itself? Is s 34(3)(b) a limitation upon, as opposed to a precondition for, the exercise of the power to revoke citizenship?

“No evidence” ground

Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material? 

s 494AB prohibits remittal? Jurisdiction for habeas implied in Constitution?

High Court. Does the fact that s 494AB(3) prohibits bringing certain matters in FCCA mean HCA cannot remit them to FCCA? Is the HCA and FCCA's jurisdiction for granting habeas corpus implied under s 75(v) of the Constitution? Plaintiff also sought a declaration that it is in the public interest for Minister to consider exercising power under s 197AB. Because of s 476(2)(d), a decision not to consider the exercise of the Minister's power under s 197AB is not reviewable by the FCCA. As the declaration sought does not involve such a decision, does FCCA have jurisdiction to make that declaration?

Student visa: GTE requirement interpreted

Federal Court. AAT wrote: "a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily". Was AAT's approach wrong because "cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and ... there is no additional requirement that the applicant be a genuine student"? As studying in Australia would necessarily prolong Appellant's stay, was it wrong for AAT to reason that appellant wanted to prolong her stay? Was AAT required to make a finding in relation to each factor in Direction No 53?

Must AAT consider information considered by previous AAT?

Federal Court. If a decision-maker first states its conclusion and then talks about the evidence concerning that conclusion, does that indicate the decision-maker made the conclusion without considering that evidence? Does s 416 require AAT to refuse to consider the information that was before a previous AAT, or to have regard to the previous AAT's decision, or to take it to be correct? Can AAT adopt or accept the conclusion or the process of reasoning of a previous AAT in whole or in part?

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