Case Law Updates

Federal Court (Full Court). Is the power in s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation?

Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

Federal Circuit Court. Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Is it "necessary that the [completion of the course used to satisfy the Australian study requirement] be a prerequisite to a person’s being qualified to conduct the nominated skilled occupation"? Does the fact that the course used to satisfy the Australian study requirement provided generic skills that do not directly relate to the nominated occupation mean that the course is not closely related to that occupation?

Federal Court (Full Court): An error is only jurisdictional if material and only material if, had it not been made, the decision could have been different (HCA: Hossain). Materiality is a question of fact in respect of which judicial review applicants bear the onus of proof (HCA: SZMTA). It was incumbent on the appellant to demonstrate what would have occurred had the error not been made (FCAFC: Ibrahim). Differently constituted, the FCAFC disagreed with that aspect of Ibrahim, distinguished SZMTA and Hossain and reconciled the latter 2 cases with WZARH.

Federal Court (Full Court). In assessing Direction 79, can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?

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. In considering s 501CA(4) and Direction No 79, AAT expressly accepted Applicant's minor siblings loved and missed him but impliedly found best interests of the children should have neutral weight, based on 4 factors: "the relationship between the applicant and the children was non-parental; there was no evidence he had given them any personal or financial support; for a significant period he had been in custody; and there was 'no evidence upon which the Tribunal can rely to suggest that the Applicant will play a positive or significant role in their future upbringing'". Were those 4 factors capable of entirely negating or neutralising the love children had for Applicant, with the result that they could "lead to a conclusion that the best interests of the children taken as a whole neither weigh for nor against revocation"?

Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision-maker upon those provisions?

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court. DFQ17 held that a visa refusal notification letter must clearly convey the deadline for an application for merits review in order to comply with s 66(2)(d)(ii). Here, the following sentence was found under the heading "Registries of the [AAT]": "As this letter was given to you by hand, you are taken to have received it when it was handed to you". Did the place of that sentence render the notification unclear? The letter also read: "As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)". Did the latter sentence precisely track reg 4.31(1)?