Duty of care owed to limit duration of detention?
Federal Court. Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal from Australia as soon as reasonably practicable from the time of his written request to be removed made under s 198(1) of the Migration Act 1958 (Cth)?
Can AAT ask what could be done to avoid persecution?
Federal Court: The AAT found that a protection visa applicant (the Appellant) was likely to be extorted by Pakistani authorities if removed to Pakistan, but that he could avoid persecution by bribing them. Did the AAT make a jurisdictional error by considering how the Appellant could (as opposed would) conduct himself if removed to Pakistan?
National interest: Minister required to consider legal consequences of decision?
Federal Court (Full Court). In deciding whether it was in the national interest to grant a visa, was the Minister obliged to take into account the legal consequences of his decision, "particularly when those consequences have implications not only for an applicant but also for the nation"? Is there a "necessary inconsistency between being satisfied that the appellant is not a danger to Australia’s security for the purpose of s 36(1C) and not being satisfied that it is in the national interest to grant him a SHEV for the purpose of Sch 2 cl 790.277"?
Does FCCA have jurisdiction to review s 501(3A) decisions?
Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?
Appeal: lay witness acting as representative
Federal Court (Full Court). Did the discretion in s 32(4) of the AAT Act relate to persons required to appear before the Tribunal, but not to parties? May the word “appear” in s 32(1) of the AAT Act "be understood as invoking concepts of agency, such that the party may be taken to adopt and to be bound by the choices of the representative in the presentation of his or her case"?
MARA: RMA responsible for, or coerced, education agent?
According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.
s 501CA(4): can decision-maker defer assessment of non-refoulement claims?
High Court. "Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law", is it open to the decision-maker to "defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa"?
No longer an Unauthorised Maritime Arrival?
Federal Court (Full Court). Generally speaking, if a protection visa is refused, the IAA (not the AAT) has jurisdiction to review the refusal if the applicant "is" an Unauthorised Maritime Arrival (UMA). Can a person cease to be a UMA upon the grant of a visa? Does the the judgement of the plurality of the High Court in AUS17 setting out the sequence in which the IAA should approach the tasks of assessing new information for the purposes of s 473DD provide a mere guidance?
Religious belief: assumed level of knowledge?
Federal Court. In the context of the assessment of a person's holding of a religious belief, or adherence to a particular religion for the purpose of the protection criteria, can it be said that "what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge"?
CVCheck valid for visa subclass 485?
Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?