Case Law Updates

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. Once a visa application is withdrawn, is a "discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect"? Is the question of fact of whether a visa application was withdrawn an objective jurisdictional fact?

Federal Court: 86-year-old UK national Appellant had visa mandatorily cancelled and applied for a protection visa, claiming he had several health conditions, including a major depressive disorder. He provided a medical letter stating that, if returned to the UK, he was at high risk of suicide. He claimed he was owed complementary protection under s 36(2)(aa) in that, as a necessary and foreseeable consequence of being removed, he would suffer significant harm by being arbitrarily deprived of his life pursuant to s 36(2A)(a). Is s 36(2A)(a) restricted to the risk of being deprived of life by a third party? If so and if the UK did not prevent his suicide, would that constitute arbitrary deprivation of life? If so, did the Tribunal made a jurisdictional error in not assessing what would be the UK’s response to the risk of suicide?

High Court. Does the practice in the Federal Court (FCA) of hearing an extension of time application together with argument on the substantive application require the FCA to avoid "conflating the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to ... what was necessary in the interests of the administration of justice"? If so, is the FCA limited to an impressionistic assessment of the merits of the substantive application?

Federal Court (Full Court): 'While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned'

Federal Court. Despite the substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision, and that fact that both powers are to be exercised by reference to Direction 110, are those powers distinct and different in material respects?

Federal Court. If a party argues on appeal that they were denied procedural fairness in proceedings in the court below, is the question of whether the appeal is futile to be determined "from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review"?

Federal Court. In the context of s 501CA(4), AAT said to self-represented Applicant at 1st hearing: "But what you can’t say, and what is not standing up to any sort of scrutiny, is that these police reports are not to be accepted, because Ms [L] be a little bit - or a lot - mentally unwell. If that were the case, the police wouldn’t have made the reports". At the end of 2nd hearing, Applicant was asked whether he wished to disagree with the police reports, but he answered in the negative. Did 1st hearing have the effect of directing Applicant that he could not present his case, thus constituting a denial of procedural fairness (PF)? Or did the opportunity to challenge the reports at the 2nd hearing cure any denial of PF that might have occurred at the 1st hearing?

Federal Court (Full Court). Is the content of any statutory obligation to give reasons for a decision "relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence"?

Federal Court (Full Court). Is the word “should” in para 8.4(4) indicative of a requirement that must be followed (i.e. that is mandatory)? Is it doubtful that the Tribunal can permissibly have independent regard to community expectations as assessed by it, given the Direction’s express provisions with regard to that subject which can be expected to cover the field?