Case Law Updates

If an RMA's website advertised that "your case will be represented and advocated only by [an RMA] throughout the entire application process", but a client was not dealt with by an RMA, was that advertisement, combined with other factors, misleading even if the non-RMA dealing with that client was located overseas?

Federal Court (Full Court). The High Court said as follows in Viane about s 501CA(4) of the Migration Act 1958 (Cth): "That scheme necessarily requires the Minister to consider and understand the representations received". Does Viane equally apply to the consideration of any material relied on by a person who was subject to the exercise of the power under s 501(1)?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". Can it be said that, although the central consideration is the information in ANZSCO, "other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task"?

Federal Court (Full Court). Can the Tribunal act on its personal or specialised knowledge and on matters which are commonly known? Does the discharge of the onus placed on the judicial review applicant to prove that a finding by the Tribunal, which required evidence but was one in respect of which there was not a skerrick of evidence, was material to the outcome require proof that the finding was erroneous?

Federal Court. Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?

Federal Circuit Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Is it "necessary that the [completion of the course used to satisfy the Australian study requirement] be a prerequisite to a person’s being qualified to conduct the nominated skilled occupation"? Does the fact that the course used to satisfy the Australian study requirement provided generic skills that do not directly relate to the nominated occupation mean that the course is not closely related to that occupation?

Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at [47], the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?

High Court. Can a couple live "separately and apart" even when they reside in the same home? Is it possible for a couple who maintain "separate residences" to not be living separately and apart, so long as they live as a "single household"?

Federal Court (Full Court). In assessing Direction 79, can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?