Case Law Updates

Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a  single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?

Federal Court (Full Court): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate

Federal Court (Full Court): If a case officer has received no delegation of authority to cancel a visa under s 109 of the Migration Act 1958 but does so anyway, does the Tribunal have jurisdiction to review that cancellation? If so, is the Tribunal's power limited to setting aside the original decision?

Federal Court: does the question "has the applicant been in any previous relationships" in a partner visa application form refer to relationships in general or only to married or de facto relationships? Can decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? In determining whether information is false, does it matter that, at the time the information was provided, the FCCA had interpreted s 5CB in a way that was subsequently rejected by the FCA?

Federal Court (Full Court): the Minister's visa refusal letter indicating that the applicant could apply to the Tribunal within a timeframe to be calculated by the applicant by reference to the legislative provisions (as opposed to stating the date in absolute terms) was an invalid notification; as a result, a 'late' Tribunal application was not late; this decision means that 'late' Tribunal applications including those from years ago may be reconsidered in certain circumstances

The Federal Court (Full Court) decided whether a Departmental policy is unlawful. The policy deals with the situations in which the Minister should exercise his/her discretion to refuse a citizenship applications under s 24 of the Australian Citizenship Act 2007. The policy deals with children under 16 years old 'applying individually in their own right'.

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court: 'What must be remembered by all who work in the Department ... is the seriousness (for them personally) of the possible contempt of the Court by removal from Australia of an applicant in circumstances where ...'

OMARA: 'I have found that the Former Agent had ... taken on a large number of clients and accepted their money in advance but did little or no work to act on their instructions; repeatedly failed to communicate with her clients in a timely manner; ... repeatedly failed to ...

High Court: it was not in dispute that 'MARA may not take spent convictions into account in making [decisions under s 290(2) of the Migration Act 1958]', but the question was whether the AAT could; Discussion: are visa applicants really required to disclose convictions for which there was no sentence of imprisonment? Can the Minister take into account a visa applicant's spent conviction? Does the non-disclosure of a spent conviction really trigger PIC 4020?