Case Law Updates

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?

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"?