Case Law Updates

Federal Court (FCA). Was the Minister allowed to begin his consideration of the matter prior to the FCA's consent orders concerning a decision of a previous Minister being finalised? Was it "inherently unlikely" that the Minister would consider the matter until called on to make a decision, as this would be inefficient for a busy Minister? Can a Jones v Dunkel inference be drawn if the Minister fails to give evidence personally?

Federal Court. Should Thornton and Lesianawai be extended to s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Did the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer render his offending as irrelevant to the Tribunal's inquiry as to the protection of the Australian community under para 8.1.1(1) of Direction 99?

Federal Court: under the Medevac provisions, 2 doctors must assess ("either remotely or in person") a transitory person before they can be brought to Australia for medical treatment. The non-citizen argued that the review of medical records of itself constituted "remote assessment". The Minister argued that "remote assessment" must involve a consultation.

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

High Court. In Thornton, the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) precluded consideration of offences committed in Queensland by the respondent to that case when he was a child in the determination of whether to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). Does Thornton apply to offences committed by children in NSW?

Federal Court (Full Court). This decision confirms that, when a decision-maker is balancing various factors in determining whether a criterion is satisfied and finds that such a criterion is not satisfied, the fact that it found one of those factors to go in favour of satisfying the criterion does not mean that an error in the assessment of that factor was not material to the outcome of the decision. After all, more weight could have been attributed to that factor, had the error not been made, which could have led to the criterion being satisfied.

Federal Court. Is s 34(5)(a) of the Australian Citizenship Act 2007 (Cth) satisfied only where the citizen has been convicted of a single offence, as opposed to multiple offences? Is there a meaningful distinction in the context of s 34(2)(c) between the concepts of it being contrary to the public interest for a person to remain an Australian citizen and it being in the public interest that that person not continue to be an Australian citizen?

Federal Court. Is the ongoing validity of a cancellation effected under s 501(3) of the Migration Act 1958 (Cth) conditional upon timely compliance with the requirements of s 501CA? Does the use of the word 'may' in s 501CA(4) mean that the decision-maker retains the discretion not to revoke a visa cancellation even if satisfied that the non-citizen passes the character or that there is 'another reason' to revoke?

Federal Court (Full Court). Can it be said that acting under dictation might "occur where a decision-maker, tasked with a particular statutory function impermissibly merely adopts the decision of another body without undertaking the statutory task themselves"? If the Tribunal accepts or adopts a proposition of law, where that proposition itself was not erroneous, is the Tribunal acting under dictation?

Federal Court (Full Court). Should the question of whether the IAA made a jurisdictional error be answered by reference to the circumstances as they existed at the time of its decision? Was the conclusion that Afghanistan had ceased to exist and the Islamic Emirate of Afghanistan had come into existence one about which judicial notice could be taken? Was the existence of a 'receiving country' a jurisdictional fact?