Case Law Updates

Federal Court. Does the Federal Court have jurisdiction to review decisions made under s 198(6) of the Migration Act 1958 (Cth)?

According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.

Federal Court. IAA affirmed DHA's decision and FCCA dismissed judicial review application. Appellant appealed to FCA, which heard appeal and reserved judgement on 30 May 2019. On 21 Dec 2020, Minister filed affidavit affirming that Appellant departed Australia on 13 Aug 2019, was still offshore and that his BVE ceased to be in effect. Appellant held no visa to re-enter Australia. Did Appellant abandon the appeal by leaving Australia?

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

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"?

Federal Court. Is the conduct listed in cl 8.5(2) of Direction 110 exhaustive for the purposes of cl 8.5?

Federal Court. Does Direction 110 purport to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) of the Migration Act 1958 (Cth) can be exercised, such that it is inconsistent with that subsection and contrary to s 499(2), therefore being invalid?

Federal Court: cl 485.223 requires application to be accompanied by evidence that skills assessment has been applied for. In Khan, Full Court had decided that the clause "established an objective temporal test" which does not "import notions of fairness". Here, as a result of a practitioner's mistake, the assessment was only applied for after the visa application had been lodged. Should this case be decided differently on the basis that, here: the practitioner made that mistake; and ImmiAccount "should have rejected the application" given the answer "no" to the question on the visa application form on whether the applicant had applied for an assessment?

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?

Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?