Case Law Updates

Federal Court: In DOB18, Minister had said that DOB18 "would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa". In DOB18, FCAFC held that: Minister did not mean that such an application would necessarily be considered by a delegate, as a matter of law; on judicial review, DOB18 had to "establish that it was likely: (1) that the Minister would make the decision personally; and (2) that she or he would not consider whether the criteria in s 36(2)(a) and (aa) were met before considering any other criteria". Here, Assistant Minister (AM) made two non-revocation decisions. Can it be inferred from the fact that AM personally made two decisions that it was "likely that he or another duly authorised Minister would decide any protection visa application by the applicant"?

Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal denied the Appellant procedural fairness by finding that the appellant failed the character test on different grounds, namely ss 501(6)(c), (d)(i) and (d)(ii), without giving him any notice that it might do so. Was the error material, even though he failed the character test because of s 501(6)(a)?

Federal Court. Was the applicant's girlfriend, with whom he had been in a relationship for 1.5 years but only living together for 2-3 weeks and who was neither his spouse nor de facto partner, nevertheless his family member for the purpose of cl 8.2 of Direction 90?

High Court. Plaintiff 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 Plaintiff 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 (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

Federal Court. Can it be said that "the absence of an express finding in a Tribunal’s reasons on matters referred to in a ministerial direction does not necessitate the conclusion that no finding was made", as "a decision-maker may not refer to a particular matter because it has been found to be immaterial, or of no real significance" and as "there was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no substantive submissions were made, and which were not the subject of relevant evidence"?

Federal Court (Full Court). Does s 198AH(1A) create jurisdictional facts, in the sense of facts that a court can and should determine for itself? In determining pursuant to s 198AH(1A)(c) whether a transitory person "no longer needs to be in Australia for the temporary purpose", should the temporary purpose merely reflect the statutory language of the now repealed s 198C, namely being brought to Australia for "the temporary purpose of medical or psychiatric assessment or treatment", or should the purpose be more specifically identified?

Federal Court (Full Court). Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions? If there is no prospect of an applicant being removed to their country voluntarily or involuntarily, is the decision-maker nevertheless obliged to consider s 36(2)(a) or (aa) as if removal could occur?

Federal Court (Full Court). Does item 4 of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) involve a usurpation of judicial power? Does item 4 have the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution? Do items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?

Federal Court. Applicant was convicted of manslaughter. In considering under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa, Minister referred to a media article that, according to Minister, related the Applicant's "failure to provide information to the Queensland Parole Board in relation to the body of the deceased notwithstanding that he was the admitted instigator of the events leading to his death". Was Minister prevented from considering that article, in light of the FCAFC decision in HZCP?