Case Law Updates

Federal Court (Full Court): The Appellant answered "no" to the following question in a visa application form for subclass 300 (prospective marriage): "If you are in a de facto spouse, fiancé(e) or interdependent relationship, are you related to your partner by blood, marriage or adoption?" That same question was asked in the application form for visa subclasses 820/801 (partner) and the same answer was given. As the Appellant was a first cousin of the sponsor, did she fail to satisfy s 101 by providing incorrect information?

Federal Court: The writer has voiced concerns in several articles about the fact that, sometimes, merits review is inadvertently labelled by the Minister as materiality test considerations. With respect, were those concerns were echoed by the FCA? Further, can it be said that, as the Tribunal "is not bound by technicalities, legal forms or rules of evidence”, it cannot "decline to accept the tender by or on behalf of an applicant at a hearing of a document containing information capable of corroborating the basis of that applicant’s visa claim"?

Federal Court: This decision is extremely important to subclass 482 (TSS) visa applicants. Although it concerned a subclass 457 visa application, it involved the interpretation of a critical provision that is identical to cl 482.212(3). According to this decision, ANZSCO was not the only guide that could be used to determine the "skills, qualifications and employment background" that were necessary for the applicant to perform the tasks of the nominated occupation. We explain how practitioners can use this decision to their clients' advantage.

Federal Court (Full Court): In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. Can that division be resolved? Were those cases distinguished here?

OMARA's decision summary: "the Agent was complicit in fraudulent conduct in the creation of companies that the Agent knew, or should have reasonably known, were not lawfully operating in Australia but were registered for the purposes of obtaining immigration outcomes for his clients for which they were not genuinely entitled".

It is often asserted that courts are not allowed to engage in merits review of administrative decisions. However, according to this Federal Court decision, there are circumstances where courts are allowed to do so. Further, can a 'court ... review an administrative decision for unreasonableness based on a finding of fact, short of there being “no evidence” for the finding'?

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"?