Case Law Updates

The consequences of not keeping a backup of electronic files could be devastating. In this decision, the AAT affirmed an OMARA decision and found as follows: "it is clearly not acceptable practice for any migration agent to keep files and records in such a manner as to put them at risk of being totally lost or rendered inaccessible as a result of a single, simple laptop failure. It is negligent in the extreme not to have backup arrangements in place".

Sanctions involving findings that practitioners have facilitated the provision of unlawful immigration assistance have become more and more common. OMARA: "I am satisfied that the Agent’s administrative staff have provided immigration assistance within the meaning of section 276 of the Act and that such was done under the Agent’s direction".

Federal Court: This decision illustrates why it might not be in a client's best interest to provide the Tribunal with a copy of the Department's decision record. Further, was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness or that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?

Federal Court: Are the mandatory considerations arising out s 501 of the Act mandatory considerations in the context of determining whether a person is a "danger to the Australian community" pursuant to s 36(1C)(b)? Was "the possibility that the wish of the applicant ... to have a close relationship with his son would reduce the risk that he would reoffend ... relevant to the assessment that the Tribunal was required to make here"? Is the materiality test backward, or forward looking? Should "the danger referred to in s 36(1C) ... be construed to mean a very serious danger"?

Federal Court: AAT found that a forensic psychologist "was argumentative and defensive ... and did not present as an impartial witness". Although "it will usually be necessary for a decision maker to give reasons for an adverse credit finding", does the same principle apply to expert witnesses? Further, FCA held that the AAT's failure to take into account a claim about a consideration was not material because the Tribunal had already accorded that consideration "considerable weight" in favour of the Applicant.

Federal Court: The Immigration Assessment Authority (IAA) cannot consider new information unless it is credible "personal information", which means information about an identified, or reasonably identifiable, individual. Could the IAA have determined the identity of an individual the subject of a previous IAA decision by accessing the IAA's records, with the result that such a person was "reasonably identifiable"? Alternatively, does "personal information" imply knowledge of a person's name?

Federal Court: The rules that govern an application for injunction at first instance are not the same as those that operate on appeal. This court decision summarises the general principles that govern an application for injunction pending the outcome of an appeal.

Federal Court: The Appellant provided the Immigration Assessment Authority (IAA) with untranslated documents. Was the IAA required to obtain a translation of those documents?

Federal Court: In Sharma, FCA had held that: if "a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence)" in the context of s 501(6)(d)(i); otherwise, "the essential facts underlying the conviction are not immune from challenge", although there is a "heavy onus on a person seeking to challenge" them. Was Sharma wrongly decided? Does Sharma apply to s 116(1)(e)? Further, are the considerations set out in Direction 65 or Direction 79 exhaustive?

Federal Court: Applicant: unsuccessfully applied to FCA for judicial review and appealed to FCAFC; did not rely in those proceedings on the grounds relied on in Ibrahim; applied to the HCA for special leave to appeal the FCAFC's decision; made a fresh application to FCA for review of the same administrative decision while the special leave application was pending, but Registrar refused that application as an abuse of process; applied to FCA for order that Registrar accept his fresh application. Should the Anshun estoppel apply against the fresh application?