Case Law Updates

Federal Court. In considering Direction No 79 for the purposes of s 501CA(4), should decision-makers consider the consequences of any breaches of Australia’s obligations under international law not only to the non-citizen, but also to Australia? We summarise the answers to this and several other questions.

Federal Court: can a court on judicial review "intervene because of subsequent developments which might suggest that different factual findings or a different conclusion might have been reached by the [Immigration Assessment] Authority if its decision had been made after those subsequent developments had occurred"?

Federal Court (Full Court): it is settled law that, in order for a fraudulent visa application lodged by an RMA to be invalid, the applicant must be neither complicit in, nor 'indifferent' to, the fraud (Gill and Singh). The Full Court elaborated on those previous decisions, holding that 'indifference' in public law means 'reckless indifference' at common law

Federal Court. Can it be said that "the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3), unless the circumstances in subss (4), (5) or (5A) exist"? If so, is "an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment" precluded? If so, would a person "entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid" have the right to reside in the country?

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

The Federal Court (Full Court) decided whether a Departmental policy is unlawful. The policy deals with the situations in which the Minister should exercise his/her discretion to refuse a citizenship applications under s 24 of the Australian Citizenship Act 2007. The policy deals with children under 16 years old 'applying individually in their own right'.

OMARA: "The Agent claimed that the nominated position was advertised on multiple platforms. The claimed advertising occurred after the employer and nominee attended the consultation with the Agent ... It is implausible that an employer would advertise a position for which they had already found a suitable candidate. As such, I am satisfied that [the complainant] was not genuinely recruited for the nominated position". With respect, can a nominator satisfy r 5.19(12)(c) without advertising the position?

Federal Court (Full Court). FCA held that a notification under s 501CA(3) of a decision is not a decision. That judgement was appealed to FCAFC. Does a privative clause decision include the making of a determination of an administrative character? If so, does s 501CA(3) require the Minister to make an administrative determination as to the way in which he or she considers the written notice required by the provision is to be given to the person concerned, thus making a notification under that provision a privative clause decision and enlivening FCCA's jurisdiction? If so, does FCCA have jurisdiction to determine whether a determination was made by a person duly authorised by the Minister? Does a notification purportedly sent under s 501CA(3) by a person to whom the power to notify had not been delegated under s 496(1), have legal effect?

Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?

Federal Court. Can it be said that "it will almost invariably be the case that there will be differences between the accounts given by a visa applicant" and that the Immigration Assessment Authority's jurisdiction to "review" a decision "is not properly discharged by merely identifying differences between some of the accounts given and labelling those differences “inconsistencies”"?