Case Law Updates

Can RMAs draft statutory declarations for clients or provide them with templates? If so, to what extent? Should an RMA "doubt the information provided by ... client/s, the witnesses or the Declarants or any documents that [the RMA] has witnessed”? Does the responsibility to provide correct information lie with the person making a declaration? If a client keeps a copy of the service agreement, but the RMA does not, is the RMA entitled to payments? If "the way [an RMA] has managed [his/her] practice has proven successful over the years", does that "absolve" the RMA of his/her recording keeping obligations? Can it be said that "assisting ... clients with completing their forms and preparing their statutory declaration along with the signing of the Form 956" are sufficient to comply with cl 2.8(a), according to which RMAs must confirm client's instructions in writing?

Federal Court. If the parties to litigation agree on a principle, is that principle's precedential force diminished? Further, in Vaitaiki, Teoh was interpreted by: Burchett J as requiring decision-makers to take the best interests of children into account as a primary consideration if no notice to the contrary was given; Branson J as requiring decision-makers to treat those interests as a primary consideration. Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration? If the former: is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act; should the FCA adopt Burchett J's or Branson J's interpretation of Teoh?

Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?

Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.

Federal Court (Full Court): 'it will not always be illogical or irrational to place “some weight” on anonymous information'

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), did the Tribunal err in assessing the legal consequences of its decision in that it wrongly found that indefinite exclusion from Australia under special return criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) was an intended consequence of the cancellation of his visa by operation of law and thus necessarily of neutral weight?

Federal Court. Does the Federal Court have jurisdiction to hear the application for judicial review insofar as it seeks: declarations that the Minister's decision that the United Nations Committee Against Torture's Interim Measures Request was 'unwarranted' is affected by jurisdictional error; a declaration that Australia owes non-refoulement obligations in relation to the Applicant?

Federal Court. Applicant applied to FCA for extension of time within which to "appeal" AAT decision under s 44(2A) of AAT Act. AAT had decided, based on FCA decision in Lesi, that it had no power to adjourn the review, based on s 24(6)(a) of Australian Citizenship Act 2007. Applicant argued Lesi was wrong, but conceded it was not plainly wrong. If FCA allowed extension application: it could recommend that a direction be made under s 20(3) of FCA Act referring matter to FCAFC; if that was not recommended, Applicant could "appeal" AAT's decision, in which case FCA could dismiss appeal on the basis Lesi was not plainly wrong, but he would then have a right of appeal to FCAFC anyway. If FCA dismissed time extension application, that would be an interlocutory decision, meaning Applicant would need leave to appeal to FCAFC, unless time extension application itself were referred to FCAFC under 20(3). If, on a reasonably impressionistic level, there is a serious doubt about the correctness of Lesi, would that suffice for FCA to allow time extension application and make recommendation? Or would FCA also need to find Lesi was plainly wrong? Was there such a doubt?

Federal Court: Can cl 14.2(1)(a) of Direction 65 result in less weight being given to cl 14.2(1)(b)? Did the AAT's failure to make a determination about the best interests of some children amount to non-compliance with Direction 65, despite the fact that the Applicant did not "advance their interests as a positive part of his case"? Does the same principle apply to the Applicant's failure to advance a diagnosis of schizophrenia as a positive aspect of his case? Can errors be aggregated for the purpose of determining materiality?

Federal Court. In the context of s 501CA(4), there is a tension between ss 197C and 198 (which require removal even if it would breach international non-refoulement obligations) on the one hand and cl 10.1 of Direction No 79 (which says Australia will not breach those obligations) on the other hand. In XFKR, applicant submitted that AAT had erred by failing to recognise that he would have to be removed from Australia immediately under ss 197C and 198 if the mandatory cancellation of the visa were not revoked. FCA found in XFKR: AAT cited explanatory memorandum, which referred to the Minister’s non-compellable personal power under s 195A; AAT found "that any concern that the applicant might be deported was minimised by the commitment by the Australian government not to refoule"; AAT did not make error. Should XFKR be distinguished?