Case Law Updates

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

High Court. If the Minister exercises the power under s 501CA(4) and makes a finding of fact in his reasons, must he "do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known"? If so, is there "any express requirement that the Minister disclose whether a material finding was made from personal knowledge"? If not, can it be assumed that the finding was based on that knowledge?

Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?

Federal Court. Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)? Is a finding that a non-citizen is of good character for the purposes of the Citizenship Act entirely irrelevant to the question whether his/her visa should be cancelled as a result of failing the character test in the Migration Act?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court. Was there a need for the IAA's assessment of the credibility of a letter to coincide with that of the delegate? Entry interview form for unauthorised maritime arrivals asked: "1. Why did you leave your country of nationality (country of residence)? ... 7. Were there any armed groups, political groups, or religious groups operating in the area you lived?" Was Question 1 of the entry interview form asking about reasons for not wanting to return? Could Question 7 of the entry interview form be read as eliciting information about the receiving end of conduct? Is IAA required to give reasons for why it finds an applicant lacks credit?

Federal Court. The then self-represented Applicant made multiple attempts before the statutory deadline to lodge a judicial review (JR) application with the FCCA's Registry. After the last attempt, the Registry refused to accept the filing document, as it did not comply with the Federal Circuit Court Rules 2001 (Cth). Applicant eventually made a time extension application after the deadline. Before FCCA, interpreter was having difficulty understanding the Applicant. FCCA dismissed time extension application, saying nothing before it indicated it had received and refused JR application. Did the lack of a "simple inquiry of the Registry" result in the FCCA making a jurisdictional error? Was it necessary for JR application to substantially comply with the rules?

Federal Court (Full Court): a non-citizen was born, and was usually resident, in India. Although eligible for Sri Lankan citizenship, he was stateless. The IAA assessed his protection visa application on the basis that he was a Sri Lankan "national". The Minister argued to the Court that a person is a "national" of a country if they are a citizen or eligible for citizenship of that country.

Federal Court (Full Court). Did para 9.2(1)(a) of Direction 90 require that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph? Can it be said that para 9.3(1) applied "only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia"?

Federal Court. In assessing the risk of a non-citizen re-offending for the purpose s 501(2) of the Migration Act 1958 (Cth), is it unnecessary for a decision-maker to descend to a level of granularity of assessing the risk of specific future criminal conduct, as that would "require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless"? Is there a "period of limitation in the Act which might prevent the Minister taking action under s 501(2)"?