Case Law Updates

Federal Court (Full Court). Do the terms "at the time of the birth” in s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) mean the moment the child “physically emerges from the mother or gestational carrier”, instead of a period of indefinite duration?

High Court. Can it be said that "a decision maker, in whom is reposed a very general statutory power or discretion, can reduce the standard of procedural fairness to "nothingness" simply by deciding that the interests of those affected are irrelevant"?

Federal Court. On 10 June 2020, Flick J held that BAL19 was not plainly wrong and declared that the Minister's delay in deciding the Applicant's protection visa application was unreasonable. His Honour held on that date that it was unnecessary to issue mandamus ordering the Minister to make a decision within a deadline his Honour expected that the Minister would abide by the declaration and make a decision without delay. However, the Minister wrote to the Applicant as follows after Flick J's decision: "As the Minister has now appealed the judgment of Justice Flick, no decision will be made on your client’s visa application pending the outcome of the appeal. The Minister’s position is that s 501A is an available power in relation to your client’s visa application and that Justice Flick was in error in finding that the delay in making such a decision was unreasonable and that s 501A was not an available power in the circumstances of this matter. Any decision made prior to the resolution of the appeal as to whether BAL19 was wrongly decided would render the appeal moot". Can Ministers of the Crown be imprisoned for contempt of court?

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), did the Tribunal err in assessing the legal consequences of its decision in that it wrongly found that indefinite exclusion from Australia under special return criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) was an intended consequence of the cancellation of his visa by operation of law and thus necessarily of neutral weight?

Federal Court. Section 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) read: "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth)?

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?

Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?

Federal Court. Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred? Can it be said that, under s 501(3) of the Migration Act 1958 (Cth), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test?

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court. Would an error in exercising the power in s 501(3A) more than once in respect of the same failure to pass the character test in s 501(3A)(a) not be material if a separate conviction and sentence existed which, although not relied upon for the purpose of s 501(3A)(a), on its face met the threshold of the Minister being satisfied as to an applicant having "a substantial criminal record"?