Case Law Updates

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.

Federal Court (Full Court). Does s 273(1) of the Migration Act 1958 (Cth) authorise the Commonwealth to refuse entry if a visitor insists on...

Federal Court (Full Court): AAT did to disclose existence of a non-disclosure certificate issued under s 438(1)(b), but did not take the information covered by it, which related to the Appellant's claim for protection, into consideration. AAT found that: 1) Appellant did not have a well-founded fear of prosecution nor satisfied the complementary protection provisions; 2) and, in any event, Appellant could reasonably relocate to safe areas of his country, meaning that he was not owed protection obligations. If the first finding was erroneous, was that error material/jurisdictional?

High Court. Can it be said that "the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa)? Are the circumstances constituting "significant harm" exhaustively identified in s 36(2A)?

Federal Court (Full Court). Judicial review applicant's visa was mandatorily cancelled, but cancellation was revoked by delegate under s 501CA(4) of Migration Act 1958 (Cth). His visa was mandatorily cancelled again under s 501(3A) due to further offences, but this time a delegate refused to revoke cancellation. Was AAT bound to set aside non-revocation decision, on the basis that s 474(1)(a) provided that the revocation decision was final and conclusive?

'... Agent had accessed the personal and immigration information of a person who was not her client on three separate occasions without their knowledge or permission, using [VEVO]'

Federal Court (Full Court): This decision indirectly prompts the question of whether and how it possible to avoid, in some circumstances, the restraint placed on the IAA on receiving "new information". Did the Secretary breach s 473CB(1)(c) "simply on the basis that [some documents] were in the Department’s possession or control and were not considered for relevance by the Secretary"? If not, does s 473CB(1)(c) only require the Secretary to consider documents of which he/she is aware? If not, should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control"?

Federal Court. Para 8.2(1) of Direction 90 read: "The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia..." Para 8.2(2)(b) read: "This consideration is relevant in circumstances where... there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence". Is a police report capable of being seen as an independent and authoritative source?

Federal Court (Full Court). Were the best interests of the children under Direction 90 to be viewed through the prism of what the appellant would do if the visa was refused? Does the fact that the Tribunal was aware that the interests of the relevant minor children differed and the extent to which they did and that the appellant did not put that difference in issue before the Tribunal mean that the Tribunal engaged in the required weighing exercise?

Federal Court (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?