Case Law Updates

Federal Court (Full Court): the Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). The Appellant argued to the Full Court that a suspended sentence is not a sentence for the purposes of the definition of a "substantial criminal record" under s 501(7).

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), is it possible to consider a non-citizen's criminal history without taking all of it, including a successful appeal on sentence, into account?

Federal Court. The Minister found as follows under s 501BA of the Migration Act 1958 (Cth): "While I accept that the removal and visa limitations which result from a decision to cancel [the Applicant’s] visa would likely sever his ability to return to Australia, I find that this is the intended consequence of the operation of s 501 of the Act. Accordingly, I afford this consideration neutral weight." Was that finding circular and therefore legally unreasonable?

Federal Court: 'I do not think that [deciding to cancel a visa under s 501(3) rather than s 501(2)] is a “decision” which is subject to judicial review'

Federal Court: The Minister issued a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) to the Tribunal relating to matters that were relevant to the Tribunal's decision. Can it be said that "the fact that evidence [given by the Minister] is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration"? Important: this decision says nothing about whether relevant information given by a visa applicant or holder is a mandatory consideration. The above question concerns only information given by the Minister to another administrative decision-maker.

High Court: Plaintiff sentenced to imprisonment for life, with a non-parole period. Just before plaintiff became eligible to apply for parole, legislation changed in a way that his eligibility was severely constrained. Did the legislative change represent resentencing or repunishment, thus offending the separation of powers? Does the fact that the legislative change expressly singled out the plaintiff have any bearing on how that question should be answered? If the legislation was valid, could migration legislation also validly single out an individual?

Federal Court. Did the failure of the applicant to point out the defeasibility, pursuant to s 36(3) of the Migration Act 1958 (Cth), of his right to enter the Republic of South Africa (RSA) "obviate the obligation on the decision-maker to make a finding of fact on the materials before it that such a right was currently in existence and not immediately defeasible on return to the RSA"?

Federal Court. Does the decision of the High Court in Love apply to non-Aboriginals? Can it be said that, to say that the possibility of a non-citizen re-offending cannot be dismissed "completely" without relating that observation to material that provides a foundation for the possibility of re-offending equates to merely saying that the future is uncertain?

Federal Court: the applicant's last email address provided to the Minister for the purposes of receiving documents was the one provided by the AAT

Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?