Case Law Updates

MARA. Does the lodgement of skills assessment applications or EOIs constitute immigration assistance? Can RMAs be sanctioned for that type of work?

Federal Court (Full Court). For the purposes of assessing complementary protection criteria, s 36(2B)(a) required AAT to consider whether "it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". Is s 36(2B)(a) informed by, and does it give effect to, a principle akin to the principle of internal relocation? Did AAT misinterpret s 36(2B)(a) by using as a starting point its assessment that Appellant had two "home areas", rather than directing attention to the place where Appellant was likely to return to?

Federal Court (Full Court). Section 9.1.1 of Direction 79 required AAT, in considering the exercise of discretion under s 501(2), to have regard to the "principle that crimes of a violent nature against women or children are viewed very seriously". Appellant was convicted under s 13 of Crimes (Domestic and Personal Violence) Act 2007 (NSW): "A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence". He was also convicted under s 14: "A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence". Is s 13 limited to physical violence? Was AAT wrong to label offences as "serious"? Did AAT depart from Briginshaw principle because of lack of conviction to support a finding?

Federal Court held: leaving aside s 196, it is necessary for officers to hold a reasonable suspicion throughout the period of a detainee’s detention under s 189; the reasonable suspicion must be held by the detaining officer; the tasks of the immigration detention centre case managers in this case fell short of what is required for it to be said that they are detaining a person under s 189; the construction of s 196(4) involve reading it as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”; and despite the fact that, had the Applicant not been unlawfully detained, he should have been lawfully detained anyway, the Applicant was awarded exemplary damages.

Federal Court (Full Court). Child applied for child visa. Cl 101.222 of Sch 2 required approval of sponsorship. Sponsoring mother used to live with Mr M, who was not the father of the child, was in prison at TOD, was the father of 2 other children of the mother and gave her financial support. AAT had power under reg 1.20KB(12) to refuse sponsorship if it requested police check for sponsor's de facto partner and such partner did not provide it. Mother denied Mr M was her de facto partner and police check was not provided. Is residence in prison a factor as to whether a couple has a de facto relationship? Should AAT have considered s 5CB? If so, did AAT's speculation that Mr M might want to "visit" his children once released despite its finding that he was in a de facto relationship with the mother indicate it did not consider s 5CB(2)(c) and therefore s 5CB?

Federal Court. AAT set refusal aside, finding Applicant met s 36(2)(aa). On remittal, in considering exercise of discretion under s 501(1), Minister "accepted" AAT had found s 36(2)(aa) was satisfied and "noted" Applicant's submission to Minister relating non-refoulement obligations. Can it be said that Minister's acceptance that the AAT had found that s 36(2)(aa) was met should not be viewed as acceptance by him of substratum of AAT's finding? Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to discharge his discretion? For the purposes of discretion under s 501(1), is Minister entitled to disagree with or adopt AAT's findings?

Section 312A requires RMAs to notify DHA if they are giving someone immigration assistance. MARA found RMA: owned a few businesses and nominated some employees under those businesses; listed himself as an authorised recipient, instead of RMA, in some of the nomination applications. In determining whether a file note provided to the MARA in response to a s 308 notice was created retrospectively just for the purpose of a MARA investigation, can MARA look at the metadata of the file note?

Federal Court. Should Direction 65 be read down to be consistent with the Family Law Act 1975? Was AAT required to "give weight to a right, value or interest recognised by statute, international instrument or the common law"? Is Direction 65 inconsistent with that Act? Does the Convention on the Rights of the Child inform the interpretation of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65? Is Direction 65 delegated legislation? If not, is it anyway sensible to assume it intended to give effect to Australia's obligations under international law? Is Direction 65 inconsistent with the common law principle of parental responsibility?

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

The MARA accepted that the "complaint may not turn on whether a conflict of interest actually arose". But could the very response by the RMA in relation to that complaint lead the MARA to find that the RMA failed to "recognise either the potential for a conflict of interest to arise or consider her position and conduct if such were to arise"? If so, could that finding lead the MARA to decide that the RMA's conduct represents a risk to consumers?