Case Law Updates

Federal Court (Full Court): it is settled law that, in order for a fraudulent visa application lodged by an RMA to be invalid, the applicant must be neither complicit in, nor 'indifferent' to, the fraud (Gill and Singh). The Full Court elaborated on those previous decisions, holding that 'indifference' in public law means 'reckless indifference' at common law

Federal Court (Full Court): former RMA had charged clients "for nothing more than ‘being available’", said AAT when reviewing OMARA's sanction. According to Full Court, OMARA/AAT have jurisdiction even on the basis of conduct that falls outside client/agent relationships; in any event, in determining whether the complainants were clients, it was irrelevant whether immigration assistance had actually been provided

Federal Court (Full Court): ordinarily, a subclass 820 visa application will be decided first and the 801 second. However, decision makers can reverse that order in some circumstances; perhaps that means that a TSS visa can be refused before nomination is processed in some circumstances, thus denying review rights to visa applicants

Federal Court: the fact that an AAT applicant mistakenly gave the sponsor's details on the AAT application form under 'details of person applying for review' was not determinative. The Court held that the review application had been made by the visa applicant

'There is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing'

Federal Court (Full Court): in a separate  (but not in dissent) judgement, Mortimer J held that the High Court's materiality test in Hossain did not apply to procedural fairness and legal reasonableness

Federal Court (Full Court): 'While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned'

Federal Court (Full Court): in a case where the Minister refused the primary applicant's protection visa application but did not decide the secondary applicant's application, the Tribunal did not have jurisdiction in relation to the secondary applicant

The complementary protection under s 36(2) of the Migration Act 1958 was not engaged, as loss of life as a result of losing access to medical treatment was insufficient to support the conclusion that the appellant would be 'arbitrarily' deprived of his life. However, that provision does not require an actual subjective intent to deprive an applicant of their life

The provision of false information was irrelevant for the purposes of determining whether a passport was a bogus document under s 5(1) and thus whether a protection visa should be refused under s 91WA of the Migration Act 1958