Case Law Updates

High Court. Would s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) be Constitutionally valid to the extent that it is reasonably capable of being seen as necessary for the purpose of protecting the integrity of the naturalisation process? If so, is it so capable? Is s 34(2)(b)(ii) of the Citizenship Act invalid in its operation in respect of the plaintiff because it is not supported by s 51(xix) of the Constitution (naturalisation) or because it reposes in the Minister the exclusively judicial function of punishing criminal guilt?

Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?

Federal Court. Can cl 103.213(1)(c) be satisfied even if the course it refers to has not commenced, so long as a reasonable time to commence such study has not yet expired? Does cl 103.212(1)(c) allow the penumbra of study (such as enrolment or other preliminary steps) to commence since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?

Federal Court. Is the fact that an applicant is self-represented before the Tribunal a relevant circumstance which impacts the question of the fairness of the procedure adopted by the Tribunal?

Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?

Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?

Federal Court. For the purpose of cl 892.212(c) of Schedule 2 to the Migration Regulations 1994 (Cth), may financial statements prepared in accordance with accounting standards provide evidence of the value of the net assets of a business? If so, and the financial statements prepared for a fiscal year overlap only partially with the period described in cl 892.212(c), is a period different from the period provided for in the provision acceptable?

Federal Court. Was the Applicant "entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru", in light of the omission in s 197C of the Migration Act 1958 (Cth) to a reference to s 198AD, despite the Minister's power to take him to Nauru pursuant to s 198AD and despite the fact that the Migration Act does not provide a statutory mechanism to determine such a claim?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?