Case Law Updates

Federal Court (Full Court): In SZFDE, HCA had held that a representative's conduct only invalidates a review under Pt 7 of the Migration Act if conduct is fraudulent and subverts the review. Here: 2 visa refusals were automatically referred to the IAA for review under Pt 7AA; the same representative purported to make submissions to the IAA on behalf of both visa applicants (the respondents); however, without the respondents' knowledge, those were template submissions copied from other cases, which said little about the respondents' cases, made arguments that related to other applicants and made generic arguments. The FCAFC was divided on whether SZFDE applied to Pt 7AA reviews.

Federal Court. 457 nomination applicant (i.e. sponsor) was required to satisfy r 2.72(10)(f), which provided: "the position associated with the nominated occupation is genuine". Does that provision require that the position has existed in the past in the sponsoring business or that it has been filled by anyone?

Federal Court. Does the term 'immediate family' under cl 14.2 of Direction 79 include parents? If a decision-maker finds one of the factors in Direction 79 in favour of a non-citizen, but the weighing exercise called for by s 501CA(4) nevertheless results in a finding that there is not 'another reason' to revoke a mandatory visa cancellation, can an error in assessing that factor be material in that, had it not been made, additional weight could have been placed on that factor, which could have tipped the scales in the non-citizen's favour?

Federal Court. Can it be said that, "once a view is taken that a witness has been untruthful in one respect, it can and often does affect, consciously or subconsciously, the assessment of the witness’s remaining evidence, whether that other evidence was given before or after the supposedly untruthful evidence"?

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Federal Court. Was the Applicant inhibited in his task of seeking judicial review within the 35-day statutory deadline, because the reasons for the decision of the Tribunal followed 21 days after the decision was made? Is it for the Court to set to one side a clearly expressed conclusion by the Tribunal on the basis that it may be a mistake?

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.

High Court (single Justice). Can it be said that, although "a separate visa was granted to each of the First, Second and Third Plaintiffs, nevertheless the Second and Third Plaintiffs were each a "holder" of the Protection visa granted to the First Plaintiff"? Was r 2.55 of the Migration Regulations 1994 (Cth) a prescribed method for the giving of a NOICC under s 119(2) of the Migration Act 1958 (Cth)?

Federal Court (Full Court). FCA held that a notification under s 501CA(3) of a decision is not a decision. That judgement was appealed to FCAFC. Does a privative clause decision include the making of a determination of an administrative character? If so, does s 501CA(3) require the Minister to make an administrative determination as to the way in which he or she considers the written notice required by the provision is to be given to the person concerned, thus making a notification under that provision a privative clause decision and enlivening FCCA's jurisdiction? If so, does FCCA have jurisdiction to determine whether a determination was made by a person duly authorised by the Minister? Does a notification purportedly sent under s 501CA(3) by a person to whom the power to notify had not been delegated under s 496(1), have legal effect?

Federal Court. Is the materiality threshold high? Can individual errors which in and of themselves are immaterial nevertheless be cumulatively material?