Case Law Updates

Federal Court. Can it be said that "evidence that a particular cohort of persons has a 13% chance of recidivism is equivalent to a statement that 13 out of 100 persons in the cohort will reoffend but that evidence, by itself, says nothing about the likelihood of a particular member in the cohort reoffending"? Did cl 6.3(5) contain a mandatory consideration? Are the offences to which cl 13.1 of Direction No 79 is directed "violent and/or sexual crimes against women, children and vulnerable members of the community"?

MARA: "I am satisfied that the Former Agent deliberately misled [the client] on the lodgement process and on the progress of the visa application/s in order to conceal from [the client] the deficiencies in his working knowledge of migration legislation..."

Federal Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Can it be said that, although the central consideration is the information in ANZSCO, "other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task"?

High Court. Can it be said that the type of invalidity effected by s 109 of the Constitution does not render the State law void or beyond State legislative power, but instead renders the State law "inoperative"? If so, does it follow that, "on and from the Commonwealth law ceasing to have effect, the State law resumes its full force and effect"?

Federal Court (Full  Court). FCCA remitted matter to AAT "for determination according to law". AAT disagreed with FCCA reasons and instead followed an earlier FCA decision. Was AAT bound to follow FCCA conclusion? Should a judge follow the judgment of another judge of the same court unless persuaded it is clearly wrong? If FCCA (previous FCCA) finds alternative grounds against Minister, matter is remitted to AAT, Minister does not appeal, AAT affirms original decision and non-citizen applies to FCCA (next FCCA) for judicial review: is it an abuse of process for Minister to argue before next FCCA that previous FCCA was wrong; does previous FCCA decision create an issue estoppel? Are the consequences of a past act or omission capable of engaging the complementary protection criterion in s 36(2)(aa)?

Federal Court. In Australia, it a matter of "ordinary human experience" that a copy of an arrest warrant may be left with a third party connected to the suspected offender? Are the laws of a foreign country relating to the issuance of arrest warrants a matter of "ordinary human experience"?

Federal Court. Is the production of a certified extract from the Registrar of Births Deaths and Marriages for the State of Victoria evidence of the fact of the birth and of each of the facts stated therein? In determining parentage, did it matter that the child support payments that were required to be made by the claimed father were, in the delegate's view, "low"? Was a Medicare card listing both the claimed father and the Applicant evidence of parentage?

Federal Court. Was the prospect of indefinite detention a necessary and foreseeable consequence of the Tribunal’s decision which should have been considered, as the the obligation to consider it was not limited to "circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned" to their home country? In other words, does the Full Court decision in DQM18 prevail over AZAFQ to the extent of any inconsistency?

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 (Full Court). Did the Tribunal have the power, in reviewing a refusal to grant the Respondent a SHEV, to determine whether the Minister had made a jurisdictional error in granting him a temporary safe haven visa under s 195A? Is it an implied condition that the state of mind called for by s 195A, namely that the Minister thinks that it is in the public interest to grant the visa, be formed on the basis of a correct understanding of the law?