Case Law Updates

Federal Court: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)? Can a failure to treat like cases in a like way constitute jurisdictional error? If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept the tender?

The Full Court overturned a decision from a single judge of the Federal Court that had held that "the use of the term 'secondary [consideration]' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances"

High Court. Where Parliament repeats words which have been judicially interpreted, can it be taken, depending on the circumstances "to have intended the words to bear the meaning already judicially attributed to them"?

Federal Court. Minister revoked Applicant's citizenship, who applied under s 29(7) of AAT Act for time extension to apply for merits review. AAT wrote: "There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances". As a matter of law, do time extension applicants need to establish “truly exceptional circumstances”? Did AAT treat the need for exceptional circumstances as a matter of law?

Federal Court (Full Court). Section 116(1)(e) called for the consideration of future possibilities which proceeded by drawing inferences from known facts and "reasonable conjecture within the parameters set by the historical facts". To these considerations should the following ones be added as legitimate bases for the assessment process: "common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department"?

The AAT 'had the power to extend time and ought to have treated [the review application] as a proper or at least a constructive application for an extension of time'.

Federal Court: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction 65, which makes the time a non-citizen "has spent contributing positively to the Australian community" a mandatory consideration? If not, may there be "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"? If so, was the present case one of those circumstances? Further, s 43(2B) of the AAT Act requires the AAT to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Does it follow that everything stated in the AAT's reasons is material to its decision?

Federal Court (Full Court): 'While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned'

Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?

Federal Court. Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)? Is a finding that a non-citizen is of good character for the purposes of the Citizenship Act entirely irrelevant to the question whether his/her visa should be cancelled as a result of failing the character test in the Migration Act?