Case Law Updates

Federal Court. Were the tests in ss 34(2)(c) and 34(2) of the Australian Citizenship Act 2007 (Cth) retrospective only, with the assessment of risk of reoffending being of little or no relevance? In such tests, is it generally permissible for decision-makers "to have regard to such deterrence as a factor in the protection of the integrity of the naturalisation process, provided that it is not associated with a substantial purpose of pursuing retribution for or denunciation of the specific conduct engaged in by the person whose citizenship is revoked"?

Federal Court: Although this decision concerned a non-migration matter, it could be relevant to migration matters. Construction Occupations Registrar made a decision that it would only grant a licence subject to annotations. Applicant applied to FCA for judicial review of Registrar's decision under ADJR Act, but almost 6 months late. Was the fact that there was no barrier to the Applicant making a fresh licence application a factor that should go in favour of the FCA granting time extension? If so, could that same argument be made in a case where a non-citizen missed the deadline for judicial review application but is not barred by s 48 or any other provision from making a further visa application of the same class as the one that was refused?

Federal Court. Subsection 34(2) of the Australian Citizenship Act 2007 (Cth) provides that the Minister may revoke a citizenship if, among other things, the subparagraphs in s 34(2)(b) are satisfied, such as the person having been convicted of an offence under s 50 of that Act or having obtained citizenship as a result of migration-related fraud. Is the discretion under s 34(2) limited to considerations of the circumstances within s 34(2)(b)? Paragraph s 34(2)(c) requires the Minister to be "satisfied that it would be contrary to the public interest for the person to remain an Australian citizen". In applying s 34(2)(c), can decision-makers consider only what is "contrary to", rather than "in", the public interest?

Federal Court. Were the financial capacity criterion and enrolment criterion not entirely independent, with the result that the Tribunal's finding on the latter did not render its error on the former immaterial?

Federal Court. May the Tribunal’s obligation under s 425 of the Migration Act 1958 (Cth) to invite a review applicant to a hearing include alerting the applicant to an issue arising from country information? Does the operation of s 424A(3)(a) reduce the breadth of the obligation under s 425?

Federal Court. A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law? Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?

Federal Court. The Full Court held in Thornton that a finding of guilt as a juvenile is effectively expunged for the purposes of considering pursuant to Direction 90 the nature and seriousness of a non-citizen’s offending. Is Thornton distinguishable if the Tribunal considers juvenile's conduct as “other serious conduct”, instead of as criminal conduct?

Federal Court (Full Court). In the decision in Stewart  plainly wrong? If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error? If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?

According to the OMARA, the suspended RMA turned 'a blind eye to the activities of [a non-RMA], choosing to be ignorant of his conduct'. It seems that assistance by the non-RMA with skills assessment applications was considered by the OMARA to be 'immigration assistance', which only RMAs can provide.

Federal Court: FCA had held that: the factors in Direction 53 for assessing whether a person is a Genuine Temporary Entrant (GTE) were not mandatory considerations; decision makers were only required to consider whether to weigh up those factors; evidence going to a particular factor might be "shown to be so significant or compelling that it might be inferred that the Tribunal's failure to refer to that evidence manifested a failure to [consider whether to weigh up that factor]". Do the same principles apply to Direction 69? We explain how practitioners can use this decision to maximise the prospects of satisfying the GTE criterion. Further, FCA answered whether it was likely that Appellants' RMA had told them "they did not need a lawyer" at FCCA.