Case Law Updates

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

If an applicant nominates an occupation in a subclass 485 visa application form and then seeks to change the occupation before the decision, the change can only be made if it stems from a mistake, as opposed to a change of mind; The use of a "change of circumstance" (as opposed to an "incorrect information") form might suggest that the change stems from a change of mind

Federal Court (Full Court): 'There is no requirement ... in the Migration Act imposed on the Minister to comply with State (or Commonwealth) privacy laws in the obtaining of information' which can then be used by the Minister when making a decision on whether to cancel a visa under s 501(2)

Federal Court (Full Court): 'Where, as here, material is brought forward in an apparently genuine way that may lead to a reconsideration of an earlier determination as incorrect, it would be wrong to prevent the consideration of factual matters relevant to the making of the preferable decision by reference to' the principle of issue estoppel