Case Law Updates

AAT: "[The agent] failed to properly supervise her [employee] and failed to put in place systems to protect clients from repeated wrongdoing by the Company’s employee".

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

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 fact that an AAT applicant mistakenly gave the sponsor's details on the AAT application form under 'details of person applying for review' was not determinative. The Court held that the review application had been made by the visa applicant

Federal Court. Is the question in para 8.3(4)(a)(i) of Direction 99 whether the person was successful in respect of issues such as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia? Did para 8.5(2)(a)-(f) exhaustively identify the relevant categories of conduct?

Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?

Federal Court. Can the power in s 43(1)(c)(ii) of the AAT Act only be exercised where, to give effect to the Tribunal’s conclusions, it is appropriate to set aside the decision under review but the Tribunal is unable to make a decision in substitution for the decision set aside? Did the impossibility of being satisfied about relevant matters entitle the Tribunal to not weigh the factors in Direction 90 in the balance and remit the matter to the Department for reconsideration? Was the applicant Minister required to establish materiality of error? If so, was that burden onerous?

Federal Court (Full Court): 'Modern Australian society’s cultural awareness... should be at the very foundation of a decision which affects Aboriginal family and community'

Federal Circuit Court. Clause 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) read: "the applicant is enrolled in a course of study". Can cl 500.211(a) be satisfied by reason of the applicant having completed all the course work and being awaiting the results of tests and assignments, even if the applicant is no longer enrolled in a course of study?

Federal Court: The Immigration Assessment Authority (IAA) cannot consider new information unless it is credible "personal information", which means information about an identified, or reasonably identifiable, individual. Could the IAA have determined the identity of an individual the subject of a previous IAA decision by accessing the IAA's records, with the result that such a person was "reasonably identifiable"? Alternatively, does "personal information" imply knowledge of a person's name?