Case Law Updates

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. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Federal Court (Full Court). Instead of saying that errors in the form of legal unreasonableness in the making of a finding “on the way” to the final conclusion are material by definition, can it be said that they are material if they are critical findings, in the sense that there is a built-in requirement of materiality?

Federal Court. In the context of the review of a decision under s 501CA(4) of the Migration Act 1958 (Cth), the Minister is obliged to lodge with the Tribunal every document in the Minister’s possession that is ‘relevant to the making of the decision’: s 500(6F)(c). Does it necessarily follow that the Tribunal is under an obligation to at least consider the documents lodged with it under s 500(6F)(c) as relevant documents? In Plaintiff M1, the High Court warned of the danger of labels such as "active intellectual consideration" inviting impermissible merits review. Does the use of such labels necessarily invite merits review?

Federal Court. Delegate refused to revoke mandatory cancellation of judicial review Respondent's visa under s 501CA(4). AAT remitted the matter to the Minister on the basis that it was "bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained". Was AAT subject to an investigation duty? Was AAT bound to remit the matter to the Minister?

Federal Court (Full Court). Is the power conferred by s 501 to refuse to grant a visa "exercised in the performance of the duty imposed by s 65(1)(b) to refuse to grant the visa for the reason that the grant of the visa is prevented by s 501"? In BAL19, FCA decided that s 501 did not apply to protection visa applications. Was BAL19 wrongly decided? Must the power under s 501A(2) be exercised within a reasonable period of time? If so, was a period of 18 months unreasonable?

Federal Court. May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer? Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified? In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?

High Court. Does s 351(1) of the Migration Act 1958 (Cth) involve 2 sequential statutory decisions (the first being procedural and the second being substantive) neither of which the Minister is obliged to make? Were the 2016 Ministerial Instructions an approximation of the 'public interest' (being the test in s 351(1)), with the result that the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers, thereby exceeding the statutory limit on executive power imposed by s 351(3)?

Federal Court. Generally speaking, a person does not lose Australian citizenship by becoming a citizen of another country. However, there are exceptions. For instance, in some circumstances, a person who once was an Australian citizen is not an Australian citizen under the Citizenship Act 2007 (Cth) if they became a citizen of PNG by reason of the PNG Constitution. In this particular decision, did the Applicant become a PNG citizen by reason of the PNG Constitution and therefore lose his Australian citizenship?

Federal Court. In the context of s 501BA(2) of the Migration Act 1958 (Cth), was it legally unreasonable for the Minister not to honour...