Case Law Updates

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?

Federal Court. Are the procedural fairness duties affected by whether a Tribunal applicant is represented? Is the duty to consider claims not clearly articulated, but which arise tolerably clearly from the material before the Tribunal, affected by whether a Tribunal applicant is represented? Was reliance on ss 36(2)(b) or (c) tolerably clear? Are those 2 provisions a 'time of decision' requirement?

Federal Court. Appellant spent most of his years in Australia without working, due to injury. Did cl 14.1(2)(a)(ii) of Direction 65 require AAT to "consider either the appellant’s will to be productive"? Accepting that cl 14(1) requires AAT "to take into account matters of relevance to whether to revoke the mandatory cancellation of a visa, apart from those specified in cl 14(1)", can it be said that "the reasons for a lack of contribution to the Australian community are such a relevant consideration"? Could AAT give lesser weight to the relationship between Appellant and his daughter "because at the time of the Tribunal’s decision she was soon to turn 18"?

Federal Court. Do the "obligations to accord natural justice and the obligation to act within the bounds of legal reasonableness are closely linked and overlap to some extent"? Does "the codifying effect of s 473DA(1)" mean that, "except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness is not the “lens” through which the content of procedural obligations imposed on the Authority in the conduct of a review is to be determined"?

Federal Court. DoesWaterford apply to legal advice sought to be covered by a s 438 certificate? Does s 418 expressly or by necessary implication abrogate legal professional privilege (LPP)? Did s 418(3) require the Secretary to provide to the Tribunal documents attracting legal professional privilege? Should a waiver of LPP be imputed to the Minister here? Was the fact that the Secretary considered the documents containing legal advice relevant to the review determinative of the question whether they were relevant pursuant to s 418(3)?

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?

Agent had been suspended for 3 months and until certain conditions were met. As MARA received no communication from the Agent, the suspension continued to be in effect. MARA then commenced an investigation and found that: Agent had "disengaged from the migration advice profession"; his "prolonged failure to engage with [MARA] and endeavour to comply with the conditions imposed on his suspension appears to demonstrate a blatant disregard for [MARA], the migration advice regulatory scheme, and his former clients".