Case Law Updates

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"?

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

Federal Court (Full Court). Did the Tribunal make jurisdictional error by not informing the non-citizen that it was proposing to make adverse and dispositive findings on matters that had been accepted in her favour before the delegate, even though she had declined an invitation by the Tribunal to attend a hearing?

High Court. In assessing whether a statute which is silent on a topic was nevertheless intended by its drafter to be governed in a certain way on that topic, is it telling that the drafter had before it a different statute from another jurisdiction on the same topic and decided not to adopt it? Is there a "common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy"? Must any Act be read as a harmonious whole?

Federal Court: In the context of s 501CA(4), AAT found it did not need to consider Applicant's claim that he feared harm if returned to Iraq as non-refoulement obligations would be assessed first if Applicant applied for protection visa, due to Direction 75. AAT wrote: "Although this Tribunal is inclined to believe that [the applicant] would be at some risk if returned to Iraq ..., it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access". Nevertheless, AAT found that such a claim weighed in favour of the Applicant. Did AAT make the error discussed by the FCAFC in Omar by not considering risk of harm outside the scope of non-refoulement obligations? Can it be said that such error was immaterial as AAT found there would be "some risk" of harm anyway? In other words, is the materiality test a binary exercise?

Federal Court: This decision illustrates why it might not be in a client's best interest to provide the Tribunal with a copy of the Department's decision record. Further, was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness or that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court (Full Court): the AAT interpreted r 1.05A of the Migration Regulations 1994 (Cth) to provide that a non-citizen could only be "substantially reliant" on a single person in order to be "dependant" on that person. The Appellant argued to the Court that she could be "substantially reliant" both on the primary applicant and on a non-applicant.

High Court (single Justice). Is a protection visa applicant required to pick the correct "label" to describe his or her claims?

Federal Court: the applicant's last email address provided to the Minister for the purposes of receiving documents was the one provided by the AAT