Case Law Updates

Agent had been suspended for 3 months and until certain conditions were met. As MARA received no communication from the Agent, the suspension continued to be in effect. MARA then commenced an investigation and found that: Agent had "disengaged from the migration advice profession"; his "prolonged failure to engage with [MARA] and endeavour to comply with the conditions imposed on his suspension appears to demonstrate a blatant disregard for [MARA], the migration advice regulatory scheme, and his former clients".

Federal Court: Appellant and wife were granted subclass 186 visas as secondary and primary applicants, respectively, and then divorced. DHA then cancelled the wife's visa under s 128 and the Appellant's visa was cancelled under s 140(1) by operation of law: "a visa held by another person because of being a member of the family unit [MOFU] of the person is also cancelled". Appellant applied for judicial review (JR) arguing: he had standing in the JR application; as he was no longer a MOFU at the time of the cancellation, s 140(1) did not apply; s 140(2) applied instead.

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?

Federal Court (Full Court): According to the "poisoned well" principle, "it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". Does that principle apply to evidence provided by an applicant towards supporting their credibility? In other words, can a decision-maker treat that evidence as "poisoned" too, or is it required to assess that evidence before it forms an opinion on credibility?

Federal Court: this decision answers whether: time of decision (TOD) criteria require decision-makers to consider up-to-the-minute information or whether there can be a gap between the point in time the information relates to and the TOD; in protection claims, the assessment of fear of harm can be temporally relative such as "the risks have reduced over time" or whether it must be an absolute assessment of the fear as at the TOD; decision-makers can "rely on the subjective experience of a limited class of people, of uncertain characteristics, to determine an objective level of safety" for an applicant.

Once an RMA becomes aware that a client may have provided false information to the Department, are they obliged to notify the Department? MARA's answer to that question is quite interesting.

Federal Court: Due to s 500(6L), AAT had only 84 days to decide whether to affirm delegate's decision. Applicant asked for adjournment in order to obtain representation. AAT's refusal to adjourn was legally unreasonable. With respect, in answering whether that error was material, did the FCA echo what the writer had written in an article dated 5 Oct 2019: "is it not the case that it is not possible to rule out that the placing of even more weight to [a consideration] could have tipped the scales in favour of revocation?"

Federal Court: As discussed in a previous article, a judge of the FCA had echoed the writer's concerns about the fact that, sometimes, the Minister inadvertently labels merits review as materiality test considerations. With respect, those concerns have just been echoed by another judge of the FCA.

Federal Court: in the context of a review by the Immigration Assessment Authority, were the photos of the scarring previously shown by the Appellant at an interview to a delegate "new information" for the purposes of s 473DC of the Migration Act 1958? Did the fact that the photos were taken many months after the interview make any difference? Further, if the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions?

Federal Court: in the context of merits review of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth), can it be said that any departure by the original decision-maker from his or her notification obligations under s 501G(2)  would result in invalidity of a merits review application, "without consideration of the extent and consequences of the departure"?