Case Law Updates

Federal Court. Para 8.2(1) of Direction 90 read: "The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia..." Para 8.2(2)(b) read: "This consideration is relevant in circumstances where... there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence". Is a police report capable of being seen as an independent and authoritative source?

Federal Court: In Sharma, FCA had held that: if "a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence)" in the context of s 501(6)(d)(i); otherwise, "the essential facts underlying the conviction are not immune from challenge", although there is a "heavy onus on a person seeking to challenge" them. Was Sharma wrongly decided? Does Sharma apply to s 116(1)(e)? Further, are the considerations set out in Direction 65 or Direction 79 exhaustive?

Federal Court. Was the Applicant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?

Federal Court (Full Court): In SZFDE, HCA had held that a representative's conduct only invalidates a review under Pt 7 of the Migration Act if conduct is fraudulent and subverts the review. Here: 2 visa refusals were automatically referred to the IAA for review under Pt 7AA; the same representative purported to make submissions to the IAA on behalf of both visa applicants (the respondents); however, without the respondents' knowledge, those were template submissions copied from other cases, which said little about the respondents' cases, made arguments that related to other applicants and made generic arguments. The FCAFC was divided on whether SZFDE applied to Pt 7AA reviews.

Federal Court (Full Court): In DFQ17, the FCAFC held that a notification letter sent by DHA did not clearly convey the deadline for an AAT application and, as a result, a "late" merits review application was actually not late. Then, the FCA decision in Ali distinguished DFQ17 by holding that a notification letter sent via email and setting out a deadline of 21 calendar days did clearly convey the deadline. Now, the FCAFC has answered whether "the fact that a notification is sent by email is ... in itself sufficient to distinguish a case from DFQ17".

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. Was the adverse conclusion that the Applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction 90 one not obviously open on the known material, with the result that the Tribunal not putting the Applicant on notice of it amounted to a denial of procedural fairness?

Supreme Court of New South Wales. Is the question of whether, in applying a legislative power or discretion that does not infringe on the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law? If not, does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?

Federal Court (Full Court). If a party applies for judicial review of a decision of the AAT but does not join the AAT as a party to the proceedings, is that necessarily fatal to those proceedings? Does the bare fact that a non-citizen is self-represented at the Tribunal and in immigration detention during the AAT hearing amount to a denial of procedural fairness?

Federal Court: This decision summarises the principles governing the exercise of the Tribunal's discretion under s 428 of the Migration Act 1958 (Cth) to call a witness at the request of an applicant under s 426.