Case Law Updates

High Court. FCCA delivered ex tempore reasons to respondent, who did not speak English. The orders were translated, but not the reasons. Respondent did not receive or request a copy of the transcript of the ex tempore reasons and appealed to FCA before statutory deadline. Written reasons were delivered after such deadline, but well before FCA's decision. Are the procedural fairness requirements in the context of a particular decision directed to the process that occurs before the decision is made, but not after it? In other words, is the obligation to provide reasons related to procedural fairness requirements?

Federal Court. Was the Applicant inhibited in his task of seeking judicial review within the 35-day statutory deadline, because the reasons for the decision of the Tribunal followed 21 days after the decision was made? Is it for the Court to set to one side a clearly expressed conclusion by the Tribunal on the basis that it may be a mistake?

Federal Court. Where the Minister is statutorily obliged to provide a statement of reasons for his decision, should he "provide a rational and intelligible explanation as to why he chose to give greater weight to some material over other material where it relates to a significant issue which has been the subject of detailed submissions"? Can it be said that "it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because that manner of reasoning would be permissible"?

Federal Court. Should the determination of whether a representative’s email address was provided for the purpose of one matter but not another be determined objectively, without considering the subjective intention? Can an authorisation to receive documents in relation to a business monitoring survey constitute an authorisation to receive documents in relation to a NOICC?

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

Federal Court: IAA must not consider new info unless: exceptional circumstances exist (s 473DD(a)); and new info could not have been provided to DHA or is credible personal information not previously known (s 473DD(b)). May IAA's satisfaction of s 473DD(b) contribute to its satisfaction of s 473DD(a)? Must it so contribute? If it may, but not necessarily must, so contribute, should it at least usually so contribute? If so, may lack of reference to matters in s 473DD(b) in IAA's reasons lead to an inference that those matters were not considered in determining whether s 473DD(a) was satisfied?

Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?

High Court. Is the threshold of materiality additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision being vitiated with jurisdictional error? Does the applicant in an application for judicial review "bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture" called for by the materiality test?

Federal Court (Full Court). Is r 2.55(3) of the Migration Regulations 1994 (Cth) inconsistent with s 494A(1) of the Migration Act 1958 (Cth) and therefore invalid? For the purpose of r 2.55(3)(c), could a prison’s post office box address also be the post office box address of one of its inmates, in the absence of evidence that the involuntary nature of detention impacted on the ability of inmates to receive mail sent to the address of the prison?

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?