Case Law Updates

Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides that "[a] person is eligible to become an Australian citizen if the Minister is satisfied that the person ... is of good character at the time of the Minister's decision on the application". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?

Federal Court. In Tanielu, the Federal Court had held as follows: "[T]o determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future". Is there a prescribed way of evaluating the risk to the Australian community?

Federal Court. Can it be said that the Tribunal's conclusions that the applicant's crimes against other road users, strangers and members of the public going about their daily lives were crimes against vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction No. 90 were not obvious, with the result that procedural fairness required the Tribunal to put those conclusions to the applicant?

High Court. Should statutory provisions be interpreted, so far as possible, to be consistent with international law, particularly where a provision seeks to give effect to matters of international law? Is the primary object of statutory construction to "construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute"?

Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?

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?

Federal Court. In CRNL, the Full Court held that the Tribunal in that case had ascribed weight to the various considerations, having considered each in isolation, and then expressed a conclusion "without demonstrating that it actually weighed the various considerations against each other", which amounted to a jurisdictional error. Should CRNL be distinguished?

High Court. Is the Minister required under ss 54(1), (2)(c), 55(1) or 56(1) to consider relevant information given or gotten at an interview? Is "compliance by the Secretary of the Department with the consequent procedural duty to give to the Authority specified categories of "review material" [under 473CB] affected by errors in the translation of words spoken during the protection interview"? Can IAA make a jurisdictional error if it relies on misinterpretation and does not invite applicant to an interview or does not exercise its powers to get and consider new information which might address the misinterpretation?

Federal Court. If DHA identifies an AAT decision, prepares a brief to the Minister consisting of a decision record setting aside the Tribunal's decision under s 501A(2) and an invitation to circle an option indicating that he adopts that decision record as his own or to circle an option indicating that he does not set aside the Tribunal's decision, and the Minister circles the former, is this sufficient evidence to warrant orders that the Minister answer an interrogatory aimed at determining whether the Minister turned his mind to the decision? Was the interrogatory a fishing expedition?

Federal Court. Does the Tribunal have jurisdiction to review a delegate's decision made under s 501CA(4) of the Migration Act 1958 (Cth), even if the delegate’s decision was invalid or beyond power?