Case Law Updates

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?

Federal Court (Full Court): 'the decision in Hossain did not state a general principle of statutory construction to the effect that there is an implied obligation that all powers conferred on administrative decision-makers are to be exercised on a correct understanding and application of the applicable law such that a material breach of that obligation would be jurisdictional'.

Federal Court: the respondent pleaded guilty to recklessly causing injuries to his child, which led to the refusal of his visa application; the AAT accepted the respondent's argument that he had only pleaded guilty because he thought that his child would otherwise be taken away from him; the Minister applied for judicial review...

FCA: the AAT applied the wrong test under s 21(2)(h) of the Citizenship Act 2007 by stating that it was not comfortably satisfied that the applicant was of good character; further, 'lack of responsiveness... in providing documentation to [the Department]... is conduct that ...'

Mandatory cancellation under s 501(3A) requires that (a) the non-citizen not pass the character test and (b) be serving a sentence of imprisonment at the time of cancellation. Federal Court: it is irrelevant when the sentence that enlivens s 501(3A)(a) is imposed or completed; the sentence enlivening s 501(3A)(a) does not need to be the same sentence enlivening s 501(3A)(b)

The OMARA found that: metadata obtained from the Department indicated that the agent's non-RMA manager had authored documents in support of some visa applications; the metadata was one of the indicia that the non-RMA manager had provided immigration assistance