Case Law Updates

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court. In the context of administrative law, must a finding that there is a psychological or psychiatric condition be founded upon expert medical or psychological evidence? Was the Minister’s reference to the Applicant’s "psychological sexual issues" a "statement that involved the application of specialist expertise" or that "was not open absent a specialist diagnosis"? Can it be said that "to take account of the fact that he had received a 25% discount in sentencing from the court was to take into account an irrelevant consideration"?

Federal Court (Full Court). Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa? Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries? Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?

Federal Court. Cl 13.1.2(1)(b) of Direction 79 provided that, for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively ... The likelihood of the non-citizen engaging in further criminal or other serious conduct"? Is there a "material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend"?

Federal Court. Where the Minister is statutorily obliged to provide a statement of reasons for his decision, should he "provide a rational and intelligible explanation as to why he chose to give greater weight to some material over other material where it relates to a significant issue which has been the subject of detailed submissions"? Can it be said that "it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because that manner of reasoning would be permissible"?

Federal Court (Full Court). Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?

High Court. Is a visa refusal by reason of ss 501 or 501A a decision under s 65? Is PIC 4001 "void for uncertainty because it used the expression "character test" without definition"? Are delegates "bound by a prior, internally recorded view" about whether visa criteria were met? Can a s 65 officer refer an application for a decision under s 501? Can a single decision under s 65 be segmented into various discrete decisions? Are the Minister's powers under ss 501(1) and 501A(2) "spent ... if a visa should have otherwise been granted under s 65, but has not been granted"? Did the Minister have jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal was invalid?

Federal Court (FCA). An application was filed in the Federal Circuit Court (FCCA). The FCA agreed with the FCCA that the application was originally an abuse of process, as it was a "fabrication put in the name of" solicitors who had given no authority for their names to be used at that time. Was that abuse then cured on the basis that, subsequently, the Applicant and those same lawyers were happy to, and did, proceed with the application?