Case Law Updates

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

Federal Court (Full Court): 'the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation [to] matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4)' of the Migration Act 1958 (non-revocation of visa cancellation)

Federal Court: 'It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else'

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'