Case Law Updates

According to the OMARA, following a complaint, it sent a notice under s 309 of the Migration Act 1958 (Cth) to the practitioner, who asked for an extension of time to respond to the notice until the lifting of the covid-19 pandemic restrictions. Were those restrictions sufficient to justify a time extension?

High Court. Was the Executive's desire to comply with Australia's non-refoulement obligations an improper justification not to remove the unlawful non-citizen Respondent from Australia, by virtue of s 197C of the Migration Act 1958 (Cth)? If the Minister fails to remove a person from Australia under s 198 as soon as reasonably practicable, is the appropriate remedy an order mandating compliance by the Executive with the duty imposed by s 198, as opposed to the release of the non-citizen?

Federal Court: This decision is arguably relevant to migration matters in general. Applicant's Newstart allowance was cancelled by Centrelink. He applied to AAT for merits review, arguing why the allowance should not be cancelled under s 80 of the Social Security (Administration) Act 1999 (Cth). Without notice to the Applicant, AAT affirmed cancellation decision based on s 95 of that Act. In Alphaone, FCA had held that the procedural fairness rule did not require decision-makers to reveal their "thought process". Was the reliance on s 95 instead of 80 a "thought process"?

FCA: the AAT applied the wrong test under s 21(2)(h) of the Citizenship Act 2007 by stating that it was not comfortably satisfied that the applicant was of good character; further, 'lack of responsiveness... in providing documentation to [the Department]... is conduct that ...'

Federal Court (Full Court): In 2012, delegate decided not to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse the Appellant a bridging visa and notified him of it. In 2013, Appellant was granted a partner visa. In 2016, Appellant was convicted for conduct occurring for 7 years until 2009. In 2018, Minister found that Appellant failed the character test due to the 2016 conviction and personally exercised the discretion to cancel his visa under s 501(2). Did the 2012 decision estop the Minister from making the 2018 decision?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?

Federal Court (Full Court). Is the power in s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court (Full Court): In considering a visa application, the Minister may get any information that he/she considers relevant. If the Minister gets such information, he/she must have regard to that information in deciding whether to grant a visa (s 56). The question to the 5 judges was whether, after getting about 800 pages of materials submitted by a non-citizen, the Minister was required to have regard to all of the relevant information.

Federal Circuit and Family Court. In reviewing a refusal to grant a student visa to an Indian national who sought to study cookery in Australia, the AAT said at the hearing: "I know that 99% of the cooks in India don’t come here and study". Was the AAT's decision affected by apprehended bias?