Fraud “on” visa applicant: what must be proved and by whom?
Federal Court. When a visa applicant alleges fraud on the part of a representative in the lodgement of a visa application so as to establish that the application was invalid and thus avoid issues with s 48 and PIC 4020, what has to be proven and who bears the onus of proof?
“I don’t remember”: an improper answer?
Federal Court. Is it "appropriate to use the shell of an old action to commence fresh proceedings including against a new party when that proceeding has been resolved"? Were answers in the form of "I don't remember" to an interrogatory administered to the Minister improper?
Para 9.2(1) of Direction 99 limited by para 9.2(1)(a)-(c)?
Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?
Expert’s report: implied waiver of legal privilege?
Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?
Consequence of non-compliance with statutory condition
High Court. Is the statutory consequence of non-compliance with a statutory condition of an exercise of power as much a question of statutory construction as is the content of the condition?
‘Decision’ to cancel under s 501(3) instead of s 501(2)? Appeal.
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?
MARA: “provision of unlawful migration assistance”
OMARA: "I am satisfied that the Agent knowingly entered into arrangements that facilitated the provision of unlawful migration assistance... I have taken into account that the applications submitted to the Department on behalf of these sponsors were handled through the Agent’s business and that she was the nominated migration agent. It follows that I am satisfied the Agent knew, else ought to have known, immigration assistance was provided unlawfully in relation to their respective matters".
BAL19 called into question again
Federal Court. Does a Class BF Transitional (Permanent) Visa satisfy the definition of a “protection visa” in s 48A(2) of the Migration Act 1958 (Cth)? Was BAL19, which held that s 501(1) did not apply to protection visas, wrongly decided?
Effect of Minister’s “false statement”
Federal Court. Is it "illogical in the ordinary sense of the word for an administrative decision-maker to state that consideration has been given to evidentiary material in circumstances where no such consideration has been given"? At what point in time must the consideration of whether cancellation is in the national interest occur, pursuant to s 501BA(2)(b)? Can materiality be considered in aggregate?
Can AAT amend statement of reasons?
Federal Court: Tribunal can correct errors in its written statement of reasons in the General Division, but only if they are 'obvious', immaterial errors