Case Law Updates

High Court (single Justice). Where an application for merits review is ongoing and yet to be concluded, is valid on its face and made within the prescribed time limit, is it an abuse of process to file a judicial review application with the High Court to review the same decision, in the absence of exceptional circumstances?

Federal Court: 'I do not think that [deciding to cancel a visa under s 501(3) rather than s 501(2)] is a “decision” which is subject to judicial review'

Federal Court. Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?

Federal Court. In order for the Minister to personally made a decision under s 501CA(4), must he be "briefed with an accurate and sufficient summary of the matters raised by the representations or ... undertake the consideration of the representations personally"? Can it be inferred from the form of the reasons (i.e. circling 1 of 3 options) that they were the means by which the Minister was briefed, with the result that "the matters that are known to the Minister are only those matters expressed in the reasons"?

Federal Court (Full Court). Do ss 100 or 111 of the Migration Act 1958 (Cth) "make the question of whether the appellant’s incorrect answers were deliberate or inadvertent legally irrelevant in the context of" the discretion to cancel a visa under s 109? Are the circumstances prescribed under r 2.41 of the Migration Regulations 1994 (Cth) for the purpose of s 109(1)(c) non-exhaustive? If so, what are the types of permissible considerations?

Federal Court: Secretary must give IAA "any other material that ... is considered by the Secretary ... to be relevant to the review": s 473CB(1)(C). On judicial review, should the Secretary's subjective view on whether other material should be given to the IAA be determinative? If so, is that a question of fact? If so, who bears the onus of proving it? Secretary required to give reasons for "decision" on relevance? If not, does that make it difficult to prove that Secretary's "decision" was legally reasonable?

High Court (single Justice). Does the common law, once determined, operate both prospectively and retrospectively? In other words, if an administrative decision-maker decides a case based on the law as then understood, but that understanding then changes, does the new understanding apply ab initio?

Federal Court: under the Medevac provisions, 2 doctors must assess ("either remotely or in person") a transitory person before they can be brought to Australia for medical treatment. The non-citizen argued that the review of medical records of itself constituted "remote assessment". The Minister argued that "remote assessment" must involve a consultation.

Federal Court (Full Court). In deciding not to revoke under s 501CA(4) the mandatory cancellation of Appellant's visa, Minister found that, in American Samoa and Samoa: English was widely spoken; Appellant and his family would have access to health and welfare services. Could Minister base those findings on common knowledge? Were they so based? Does the materiality test involve a court asking itself whether, in the absence of the error in question, the administrative decision-maker would have made a different decision? In the context of s 501CA(4), does the materiality test involve a balancing or a binary exercise?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?