Can RMAs be responsible for consequences of 3rd-party forgery?
Q1 to the OMARA: assuming that it was not the Agent who forged the sponsor's signature and that he was not aware of the forgery, did he nevertheless facilitate the forgery by lack of diligence? Q2: assuming that the Agent's copying of the letterhead from the sponsor's website into nomination documents without the sponsor's knowledge did not involve dishonesty, was that nevertheless a misleading act? Q3: did the metadata on the Agent's file notes indicate to OMARA that those notes were not contemporaneous?
Discretion in s 34 of Citizenship Act: mandatory matters?
Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?
Privilege against self-incrimination: is there a materiality threshold?
Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?
Last email address provided “in connection with the review”
Federal Court: Appellant's previous counsel made a "deliberate decision to not argue before the [FCCA ground 1 now relied upon]". Was it "unjust for Appellant to be bound by error made by counsel"? Ground 2: Appellant applied to AAT and gave a Gmail address for correspondence. AAT sent email to the Gmail address and Appellant replied from it, CCing a Hotmail address. Appellant then sent AAT several emails from Hotmail, but never formally indicated a change of email address. AAT sent invitation to comment on adverse information to Gmail address, but Appellant claimed he did not receive it. Did the Hotmail address fit the description of "last email address ... provided to the Tribunal", under s 379A(5)(d)? If so, did it also fit the description of "provided to the Tribunal ... in connection with the review", under s 379A(5)(d)? Is it essential that a "change of contact details" form be completed?
Appeal: meaning of ‘conviction’
Federal Court (Full Court). Did the Tribunal's finding involve a misinterpretation of the law, in that it found the appellant to have been 'convicted', in the absence of a court conviction? Was it sufficient for the purpose of para 8.4(4)(f) of Direction 99 for the AAT to consider the view expressed by a child, without considering the document where that view was expressed?
Does s 65 confer a discretion?
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?
If delegate cancels, only delegate can revoke?
Federal Court. If a decision to cancel is made by a delegate under s 501(3A), can the Minister personally decide under s 501CA whether to revoke the cancellation?
IAA’s failure to click on a hyperlink a jurisdictional error?
Federal Court. Was it "legally unreasonable for the Authority not to consider getting 'new information' by clicking on the link that was provided as the source of what was described by the appellant as screenshots from the appellant's public Facebook account"?
Did r 5.19 require position to be geographically fixed?
Federal Court (Full Court). The AAT affirmed a refusal of a nomination application under r 5.19 and then affirmed the corresponding subclass 187 visa application refusal. The visa applicant applied for judicial review of the AAT's visa decision. Did he have standing in court to collaterally challenge the AAT's nomination decision through the application for judicial review of the AAT's visa decision? Did cl 187.233(3) refer to a decision in fact made, even if affected by jurisdictional error? Did r 5.19(4) require that the 'position' be restricted to one geographical location?
Can decision-makers use common knowledge?
Federal Court (Full Court). In deciding not to revoke under s 501CA(4) the mandatory cancellation of Appellant's visa, Minister found that, in American Samoa and Samoa: English was widely spoken; Appellant and his family would have access to health and welfare services. Could Minister base those findings on common knowledge? Were they so based? Does the materiality test involve a court asking itself whether, in the absence of the error in question, the administrative decision-maker would have made a different decision? In the context of s 501CA(4), does the materiality test involve a balancing or a binary exercise?