FYBR: 3-staged process?
Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?
Privilege against self-incrimination
Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.
Nathanson extended to failure to consider child’s views?
Federal Court. Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90? In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?
Student visa (GTE): how we can use a court decision to our clients’ benefit
Federal Court: In 2018, we summarised the Federal Circuit Court (FCCA) decision in Singh that interpreted Direction 53, which is almost identical to Direction 69. Both directions provide guidance on how to assess the Genuine Temporary Entrant (GTE) criterion for student visa applications. We kept tracking Singh for our readers and we now summarise a decision of the Federal Court (FCA) delivered yesterday on whether Singh was correctly decided. We also discuss how practitioners can use this FCA decision to increase clients' prospects of satisfying the GTE criterion in student visa applications.
OMARA: RMA ‘turned a blind eye to the activities of’ a non-RMA
According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.
Do Browne v Dunn & hearsay rules apply to AAT decisions?
Federal Court. Rule in Browne v Dunn: "if you intend to impeach a witness you are bound, whilst he is in the [witness] box, to give him an opportunity of making any explanation which is open to him". Does that rule apply to Tribunal decisions? Further, according to the hearsay rule, out-of-court representations made by a person are not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representations, with exceptions. Does the hearsay rule apply to Tribunal decisions? We summarise the answer to these and several other questions.
Clause 132.227(2)(b): significant benefit implied?
High Court (single Justice). Do the words 'benefits the Australian economy' in cl 132.227(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) imply a significant benefit?
Denial of procedural fairness if child does not attend AAT hearing?
Federal Circuit Court. Can the potential for a denial of procedural fairness arise in connection with a parent bringing an application on behalf of a child and the child not attending the Tribunal hearing?
Deemed to have been born in Australia?
Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?
Are decisions of international bodies relevant to domestic law?
Federal Court: "The High Court has warned against attaching particular significance to the [International Covenant on Civil and Political Rights - ICCPR] and its attendant jurisprudence in interpreting sections of the [Migration Act 1958 (Cth)] which incorporate ICCPR obligations". However, can decisions of international bodies interpreting Art 7 of the ICCPR "in the context of withheld or inadequate healthcare ... be of assistance in determining when an obligation might arise in the context of deportation"?