Case Law Updates

OMARA: "As a member of the migration advice profession, the Agent is expected to act with fairness, honesty and courtesy when dealing with other [RMAs]. This includes efficient and effective communication with other agents with respect to the transfer of client information to the new agent when the original agent’s appointment is terminated... [T]he Agent had made a written undertaking to another migration agent to provide relevant documents, and had failed to do so, in breach of clause 4.6 of the Code".

Federal Court. In BCR16, FCAFC explained there was a difference between “claiming to fear harm if required to return to a place and non-refoulement obligations”. Is that distinction illusory in some circumstances? Does the fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so prevent the application of s 198(2B) to him or her? Should those who advise the Minister, and his Department, "be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised"?

High Court. Can it be said that "an unrevoked grant of special leave to appeal entitles an appellant to advance any ground of appeal on which special leave has been granted unless precluded by operation of law such as by waiver or estoppel"?

Federal Court. Appellant had pleaded guilty to manslaughter. In personally deciding under s 501CA(4) whether there was "another reason" to revoke the mandatory cancellation of Appellant's visa, Minister found that "further" offending of a violent nature by the Appellant could result in serious physical harm to members of the Australian community. Was Minister's decision legally unreasonable in that, although Appellant's conduct led to a violent outcome (death), the nature of the conduct was not violent, as there was no intent to harm? Is a subclass 444 visa a "limited stay" visa?

Federal Court. Was the MOC's opinion that the costs would be likely to result in a significant cost to the Australian community in areas of health care and community services incorrect "because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018"?

Federal Court. The Full Court held in Thornton that a finding of guilt as a juvenile is effectively expunged for the purposes of considering pursuant to Direction 90 the nature and seriousness of a non-citizen’s offending. Is Thornton distinguishable if the Tribunal considers juvenile's conduct as “other serious conduct”, instead of as criminal conduct?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court. Is one reason why there may be no real prospect of removal becoming practicable that the Migration Act 1958 (Cth) itself imposes a statutory preclusion on the removal of the applicant? If so, did s 198(11) have the effect that removal of the applicant was only permitted to a regional processing country?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court (Full Court). In relation to the consideration in para 8.1.2(2)(b) of Direction 99, are decision-makers required to have regard to the likelihood of a 'non-citizen engaging in further criminal or other serious conduct' if they were to be granted a visa, or if their previously granted visa were not to be cancelled?