Case Law Updates

High Court. In relation to s 501CA(4) of the Migration Act 1958 (Cth), can it be said that there is "no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content"?

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?

High Court. Would s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) be Constitutionally valid to the extent that it is reasonably capable of being seen as necessary for the purpose of protecting the integrity of the naturalisation process? If so, is it so capable? Is s 34(2)(b)(ii) of the Citizenship Act invalid in its operation in respect of the plaintiff because it is not supported by s 51(xix) of the Constitution (naturalisation) or because it reposes in the Minister the exclusively judicial function of punishing criminal guilt?

High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?

Federal Court (Full Court). Are the words “other serious conduct” referred to in cl 8.1(1) of Direction 99 limited to criminal conduct or criminal convictions?

Federal Court (Full Court): 'Where, as here, material is brought forward in an apparently genuine way that may lead to a reconsideration of an earlier determination as incorrect, it would be wrong to prevent the consideration of factual matters relevant to the making of the preferable decision by reference to' the principle of issue estoppel

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. Do the words 'counterfeit document' in the definition of a 'bogus document' in s 5(1) of the Migration Act 1958 (Cth) include "a document that is authentic in the sense that its provenance as a document is genuine but contains information that is not true"?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?

MARA. Does the lodgement of skills assessment applications or EOIs constitute immigration assistance? Can RMAs be sanctioned for that type of work?