Case Law Updates

Federal Court: In SZSSJ, HCA had found that "officers conducting the ITOAs were specifically instructed to assess the effect of the Data Breach on Australia's non-refoulement obligations [assuming] that an applicant's personal information may have been accessed by authorities in the country in which the applicant feared [being returned to]". Here, DHA informed Second Appellant that it would "assess any implications for [him] personally as part of its normal processes". Unlike in SZSSJ, "there was no evidence in the present case as to what the assessment in accordance with the department’s 'normal processes' came to entail". Can HCA's description of the ITOA process in SZSSJ be used as evidence in other cases?

High Court: Although this case dealt with tax law, it concerned administrative law and could therefore apply to migration matters. The High Court (HCA) observed that "no satisfactory explanation has been offered as to why the plaintiff adopted the course of seeking writs of certiorari and mandamus rather than special leave to appeal against the [judgment of the Full Court of the Federal Court]". Was that in itself a sufficient reason to dismiss the application to the HCA?

One of the complaints against the practitioner came from the Department and was described by the OMARA as follows: "The Former Agent deliberately lodged invalid visa applications to prolong [a client's]  stay [in Australia] and to allow time to meet the visa requirements".

Federal Court: Parties to a court dispute cannot litigate the same issues more than once, although appeals are not considered re-litigation. There are exceptions to the rule against re-litigation: res judicata, issue estoppel and Anshun estoppel, which are "subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes"; abuse of process by re-litigation; untenable claims; and judgement obtained by fraud.

Federal Court: Secretary must give IAA "any other material that ... is considered by the Secretary ... to be relevant to the review": s 473CB(1)(C). On judicial review, should the Secretary's subjective view on whether other material should be given to the IAA be determinative? If so, is that a question of fact? If so, who bears the onus of proving it? Secretary required to give reasons for "decision" on relevance? If not, does that make it difficult to prove that Secretary's "decision" was legally reasonable?

Federal Court: IAA must not consider new info unless: exceptional circumstances exist (s 473DD(a)); and new info could not have been provided to DHA or is credible personal information not previously known (s 473DD(b)). May IAA's satisfaction of s 473DD(b) contribute to its satisfaction of s 473DD(a)? Must it so contribute? If it may, but not necessarily must, so contribute, should it at least usually so contribute? If so, may lack of reference to matters in s 473DD(b) in IAA's reasons lead to an inference that those matters were not considered in determining whether s 473DD(a) was satisfied?

Can we make applications on behalf of a sponsor without confirming we have instructions from a person with authority to bind the sponsor? Can we rely on a colleague's assertion that instructions have been received? Does the absence of professional fees waive the need for written confirmation of agreed services? Should social media interactions be added to client files? Are all employer-sponsored visa applicants prevented from paying nomination fees and charges? Can we provide colleagues or assistants with our ImmiAccount login details?

Federal Court: Appellant did not satisfy cl 602.212(6)(b). Thus, cl 602.213(3) & (5) required satisfaction of cl 3001. DHA refused application, as it was lodged after 28-day deadline and thus did not satisfy cl 3001. DHA's decision did not explicitly refer to cl 602.212(6). AAT affirmed decision, but failed to explicitly refer to which parts of cl 602.212(6) or cl 3001 were not satisfied. Did AAT's failure to explicitly mention those parts constitute failure to give proper consideration to the issues before it? If  AAT makes erroneous reference to a written submission that was not in fact provided to it, is that, without more, a jurisdictional error? What is a "substantive temporary visa"?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court: A person fails the character test if it is reasonable to infer from an Interpol notice [IRN] that the person would present a risk to the community: s 501(6)(h). Applicant applied to FCA, seeking orders restraining Minister from refusing visa and declaring that it was not reasonable to infer risk from IRN. Minister served Notice on Applicant to produce Interpol's Response to Applicant's application for IRN to be deleted. Should Applicant's interlocutory application to set Notice aside succeed, on the basis: that Interpol's response could not be used for the purpose of s 501(6)(h); of public interest immunity?