Case Law Updates

Federal Court: "In light of the appellant’s self-represented status on his appeal, it remains to consider whether the Court should exercise its discretion to order the Minister to produce the country information so as to enable the merits of the appellant’s argument to be determined by reference to it ... Despite the urgings of the Court [the Appellant] has expressed an unwillingness to participate in the hearing of the appeal in a meaningful way". Should the FCA exercise its discretion in favour of the Appellant?

MARA: "I am satisfied that the Former Agent deliberately misled [the client] on the lodgement process and on the progress of the visa application/s in order to conceal from [the client] the deficiencies in his working knowledge of migration legislation..."

Federal Court: Although Appellant had not complied with conditions imposed on previous student visas, Department granted him further student visas. AAT affirmed a decision to refuse the Appellant's last student visa application, due to the non-compliance described above. Appellant argued on judicial review that: "any breach of [visa conditions] had been 'condoned' by operation of law when subsequent visa applications were granted without any complaint being raised as to earlier non-compliance'; as a result, AAT was not allowed to take into account earlier non-compliance.

Federal Court. Should the Court withhold the grant of constitutional relief, for instance on the basis that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision, even though NZYQ subsequently overruled Al-Kateb?

Federal Court (Full Court). In CWY20 and ENT19, the FCAFC held that it was legally unreasonable for the Minister not to consider the reputational consequences for Australia of breaching its non-refoulement obligations when assessing s 501A(2) of the Migration Act 1958 (Cth) and cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth), respectively. Are CWY20 and ENT19 legally distinguishable for decisions made under s 501(3)? Is there a tension in the High Court's decisions on materiality in MZAPC and Nathanson?

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

Federal Court (Full Court). Can disbelief of an applicant or witness on one point subconsciously carry over to affect the decision-maker's disbelief of the same person on other points?

Federal Court: Appellant and his brother made separate protection visa applications with very similar claims, making reference to each other. Both applications were refused on the same day and each brother made a separate AAT application. The same Member heard both matters, the brother's hearing occurring a few weeks before the Appellant's. Was the AAT entitled to ignore material of which it had knowledge, namely the evidence given to it by the brother? Was the fact that the Appellant was "represented by a legally qualified" RMA relevant to that question?

Federal Court (Full Court): If a student visa applicant intends to pursue PR if the opportunity presents itself, decision-makers are allowed to take that intention into consideration in assessing whether the applicant is a Genuine Temporary Entrant (GTE) under cl 500.212. That intention may be expected to normally lead to the conclusion that the applicant is not a GTE. However, such an intention does not necessarily lead to that conclusion. We explain how practitioners can use this decision to argue that a student visa applicant can be a GTE despite also seeking PR. Arguably, the same principle could apply to visitor visa applicants who also seek PR.

Federal Court: Appellant was granted a subclass 820 visa and then claimed to have suffered family violence committed by the sponsor. Appellant sought to rely on family violence (FV) provisions for subclass 801 visa. Could the FV provisions be satisfied if there never was a relationship between the sponsor and the Appellant? If not, could they be satisfied if the relationship was not spousal or de facto in nature? Was AAT bound to accept that the relationship existed at the time of application, given that the delegate had been satisfied that the relationship existed at that point in time?