Case Law Updates

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: in the context of a review by the Immigration Assessment Authority, were the photos of the scarring previously shown by the Appellant at an interview to a delegate "new information" for the purposes of s 473DC of the Migration Act 1958? Did the fact that the photos were taken many months after the interview make any difference? Further, if the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?

Federal Court. The High Court's majority held in Plaintiff M1/2021 that a decision-maker must "read, identify, understand and evaluate" representations made for the purposes of s 501CA(4) of the Migration Act 1958 (Cth), even though that provision does not render every statement in a representation a mandatory consideration. Should that be contrasted with para 8.1.2(2)(b)(i) of Direction 110, which renders 'information and evidence on the risk of the non-citizen re-offending' a mandatory consideration?

High Court. Is the ratio in the High Court's decision in SDCV that, "even where s 46(2) of the AAT Act prevents the Federal Court from providing an applicant with any means to respond to material subject to a certificate ... , it is not contrary to Ch III because it forms an inseverable part of an additional avenue for review that is beneficial (when compared to the other available avenues of review), and therefore causes no practical injustice"?

High Court: Plaintiff sentenced to imprisonment for life, with a non-parole period. Just before plaintiff became eligible to apply for parole, legislation changed in a way that his eligibility was severely constrained. Did the legislative change represent resentencing or repunishment, thus offending the separation of powers? Does the fact that the legislative change expressly singled out the plaintiff have any bearing on how that question should be answered? If the legislation was valid, could migration legislation also validly single out an individual?

Federal Court: The AAT's decision record included: "If his application before the Tribunal is unsuccessful, [the Applicant] would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention". As the Applicant was actually not subject to indefinite detention (see s 197C), did the use of the term "indefinite detention" in the decision record mean that the AAT made a decision on an incorrect understanding of the law?

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?

Federal Court (Full Court). Does legal professional privilege apply in the context of dealings with the Department or the Tribunal? If so, does the privilege apply only if the representative acts in his/her capacity as a lawyer? If so, is it relevant whether the representative identifies him/herself as a lawyer? Does the privilege apply if the representative is a non-lawyer RMA? Will the "Deregulation" legislation change the answer to any of those questions?