Case Law Updates

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?

Federal Court (Full Court). Was Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 wrongly decided?

Federal Court (Full Court). This non-migration decision which might have consequences for migration decisions. Can it be said that a decision under s 11(6) of the CERP Rules not to exercise the "later time" discretion, made in the context of a decision that a person is not entitled to a jobkeeper payment because they did not have an ABN on 12 March 2020, does not fall within s 13(2)(a) of the CERP Act? If so, did s 43 of the AAT Act nevertheless give the Tribunal the power to exercise the "later time" discretion?

Federal Court. Is a willingness to obey or disobey Australian clearly a matter within the conception of the national interest for the purpose of s 501(3)(b) of the Migration Act 1958 (Cth)? Can it be said that "it lies outside the conception of the national interest to take into account conduct which is political communication and organisation because of that feature of the conduct"?

Federal Court: In SZTAL, the plurality of the HCA held that "the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an “actual, subjective, intention” to cause pain or suffering and that “knowledge or foresight of a result is not to be equated with intent”". However, can it be said that "evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling"?

Federal Court. Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy?

Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides that "[a] person is eligible to become an Australian citizen if the Minister is satisfied that the person ... is of good character at the time of the Minister's decision on the application". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?

Federal Court: A student visa holder was not enrolled in an eligible course and received a notice of intention to cancel his visa pursuant to s 116 for breach of condition 8516. A few days later, he enrolled in an eligible course, before the Minister made the decision to cancel his visa. Can re-enrolment cure a breach of condition 8516? In other words, does re-enrolment have the effect of ceasing the cancellation power from the moment of re-enrolment?

Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?

High Court. Does the question of whether a decision is reviewable under Part 5 of the Migration Act 1958 (Cth) depend on a non-citizen's ability to satisfy the requirements in s 347(3A)?