AAT not required to consider claim put to DHA but not to AAT
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)
Non-referral of Ministerial intervention request was judicially reviewable
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'
Applicant not indifferent although aware of agent’s fraud
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
RMA charged fee for ‘being available’, said AAT
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
Order of processing correlated applications
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
Who made the AAT application?
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
‘Tribunal’s silence was misleading’
'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'
Materiality: does Hossain always apply?
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
AAT: the dangers of statistical analyses
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'
Tribunal’s jurisdiction: secondary applicant
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