Case Law Updates

Federal Court. Can it be said that "a conclusion as to a person’s citizenship might be made administratively without any passport or other identity documents, just on the basis of an apparently truthful statement by the person (or another, perhaps a parent) as to their place of birth and confirmation by an Australian diplomatic or other source that persons so born acquire that country’s citizenship"?

OMARA: "As a member of the migration advice profession, the Agent is expected to act with fairness, honesty and courtesy when dealing with other [RMAs]. This includes efficient and effective communication with other agents with respect to the transfer of client information to the new agent when the original agent’s appointment is terminated... [T]he Agent had made a written undertaking to another migration agent to provide relevant documents, and had failed to do so, in breach of clause 4.6 of the Code".

'There is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing'

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court (Full Court). Cl 14.4(1) of Direction 79 required decision-makers to consider, under s 501CA(4), the "impact of a decision not to revoke" the mandatory cancellation of a visa on members of the Australian community, including victims and relatives of victims of the former visa holder. Should cl 14.4(1) be interpreted as referring to the impact of a decision to revoke, as opposed to the impact of a decision not to revoke?

Federal Court. Does the inclusion of a specific procedural fairness requirement into para 8.2(2)(b) of Direction 99 require something more or something different than usual procedural fairness under 501CA(4) of the Migration Act 1958 (Cth)? If so, what is that "something more"?

Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

Federal Court (Full Court). Did the Tribunal make jurisdictional error by not informing the non-citizen that it was proposing to make adverse and dispositive findings on matters that had been accepted in her favour before the delegate, even though she had declined an invitation by the Tribunal to attend a hearing?

Federal Court (Full Court). Is the Tribunal required to apply the Direction in force at the time when the application for merits review is made, instead of the Direction in force at the time when the Tribunal makes its decision? Can the Tribunal remit a matter for reconsideration, instead of re-exercising the discretion under s 501(1) of the Migration Act 1958 (Cth) for itself?