Case Law Updates

Federal Court. In considering s 501CA(4) and Direction No 79, AAT expressly accepted Applicant's minor siblings loved and missed him but impliedly found best interests of the children should have neutral weight, based on 4 factors: "the relationship between the applicant and the children was non-parental; there was no evidence he had given them any personal or financial support; for a significant period he had been in custody; and there was 'no evidence upon which the Tribunal can rely to suggest that the Applicant will play a positive or significant role in their future upbringing'". Were those 4 factors capable of entirely negating or neutralising the love children had for Applicant, with the result that they could "lead to a conclusion that the best interests of the children taken as a whole neither weigh for nor against revocation"?

If payment of professional fees are pending, is RMA obliged to respond to emails anyway? Can RMA use partner visa sponsor as the conduit for communication with applicant? Does the same apply to work visa sponsor and visa applicant? Are RMAs obliged to proactively contact their clients before the expiry of a visa to advise them that their visa is going to expire soon? Are RMAs required to contact AAT and request an update in order to ease client's concerns? If an email from AAT goes to the RMA's junk mail folder, can the RMA be held responsible for his/her email server? If all the payments for professional fees are being made by a work visa sponsor, is visa applicant a client?

Federal Court. A person fails the character test by reason of s 501(6)(ba)(i) if "Minister reasonably suspects that the person has been or is involved in conduct constituting ...  an offence under one or more of sections 233A to 234A". Can person fail the test for offences committed before ss 233A to 234A or s 501(6)(ba) were introduced? Can it be said that, although "the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error", "a beneficial approach to the reasons does not demand that any ambiguity in them must be resolved in the Minister’s favour"? Was it legally unreasonable for Minister to find that Applicant represented unacceptable risk to the community and yet that he could grant him a visa under s 195A? Was BAL19 wrongly decided?

Federal Court. In determining non-revocation request under s 501CA(4), AAT had to consider Direction 79, para 14.5(1) of which provided AAT had to consider the "extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)...". Does para 14.5(1) require decision-makers to "draw a comparison between the welfare systems in Australia and [the non-citizen's home country]"? Is para 14.5(1) to be applied "solely by reference to a generic citizen of the relevant home country, the characteristics of whom are uninfluenced by the particular non-citizen’s personal circumstances"?

Federal Court. Does a Class BF Transitional (Permanent) Visa satisfy the definition of a “protection visa” in s 48A(2) of the Migration Act 1958 (Cth)? Was BAL19, which held that s 501(1) did not apply to protection visas, wrongly decided?

According to a landmark Federal Court (FCA) decision which we summarised in Jan 2020, the Tribunal could not consider issues and provisions not considered by the Department. Both the Minister and the non-citizen appealed that decision to the Full Court of the FCA (FCAFC). Was the FCA decision wrong? What are the principles by which the FCAFC might determine whether or not to proceed to hear an appeal where the substantive issues on appeal have become moot?

Federal Court (Full Court). "In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials". Does that apply to s 501 visa refusals? In application for subclass 201 visa, Appellant argued he and his "family" (i.e. parents and siblings) had humanitarian claims. He then married, had a child and notified DHA of that. Can it be said that, "once the marriage and the birth were notified..., there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child"? Is subclass 201 a protection visa, with the result that, according to BAL19, s 501 should not have applied?

Federal Court (Full Court). FCA held that a notification under s 501CA(3) of a decision is not a decision. That judgement was appealed to FCAFC. Does a privative clause decision include the making of a determination of an administrative character? If so, does s 501CA(3) require the Minister to make an administrative determination as to the way in which he or she considers the written notice required by the provision is to be given to the person concerned, thus making a notification under that provision a privative clause decision and enlivening FCCA's jurisdiction? If so, does FCCA have jurisdiction to determine whether a determination was made by a person duly authorised by the Minister? Does a notification purportedly sent under s 501CA(3) by a person to whom the power to notify had not been delegated under s 496(1), have legal effect?

Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.

Federal Court. Interpol Red Notice (IRN) was issued in relation to Applicant, stating he had been charged. A person fails the character test by reason of s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". On the basis of the IRN, Minister personally refused to grant visa under s 501(1), stating: "It is therefore not without some substance that [the applicant] would be under suspicion of these charges". Does use of the word “would” in s 501(6)(h) require more than mere suspicion? Could it reasonably be inferred from IRN that Applicant would present a risk to the Australian community?