Case Law Updates

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 (Full Court): In SZMTA, HCA had held that: error is jurisdictional only if it is material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC had held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. In Weti-Safwan, it was unnecessary to resolve that tension, given the facts of that case. Can the Ibrahim / Nguyen tension be resolved? Were those decisions distinguished here? With respect, we disagree with one aspect of this decision.

Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Federal Court. Given the 25-month gap since the Tribunal’s decision, was it "illogical or irrational for the Minister to assume that certain facts at the date of the Tribunal’s hearing remained the same, or that the lack of evidence on certain matters at the date of the Tribunal’s decision meant that there continued to be a lack of evidence at the date of his decision"?

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)?

Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?

Federal Court (Full Court). Was the Appellant denied procedural fairness in that "the Minister or the Minister’s delegate decided to exercise the cancellation power in s 501(3A) rather than 501(2) [of the Migration Act 1958 (Cth)] when the latter requires the person affected to be given an opportunity to be heard before the power is exercised whereas the former does not"?

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?

High Court. Is a non-disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) "new information" within the meaning of s 473DC? If so and the IAA treats a certificate as valid and exercises the power conferred by s 473GB(3)(a) to have regard to the information protected by the certificate, can the IAA be taken to have considered that the certificate itself "may be relevant" within the meaning of s 473DC(1)(b)?

High Court. Is the effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt? Did s 36D(1) of the Australian Citizenship Act 2007 (Cth) purport to vest such a power to impose additional or further punishment in the Minister? If so, is s 36D invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?