Case Law Updates

Federal Court (Full Court): a non-citizen was born, and was usually resident, in India. Although eligible for Sri Lankan citizenship, he was stateless. The IAA assessed his protection visa application on the basis that he was a Sri Lankan "national". The Minister argued to the Court that a person is a "national" of a country if they are a citizen or eligible for citizenship of that country.

Federal Court (Full Court): In considering a visa application, the Minister may get any information that he/she considers relevant. If the Minister gets such information, he/she must have regard to that information in deciding whether to grant a visa (s 56). The question to the 5 judges was whether, after getting about 800 pages of materials submitted by a non-citizen, the Minister was required to have regard to all of the relevant information.

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: as reported by Migration Law Updates in Dec 2018, the Federal Circuit Court had held that the reference to "2 years" under reg 1.15AA of the Migration Regulations 1994 was linked to the "medical condition", not the "assistance" to be provided by the carer. That decision was appealed.

High Court (Full Court): a non-citizen held in immigration detention invited the Court to draw the inference that there was no real prospect or possibility that he would be removed from Australia. Based on that inference, he also invited the Court to adopt the view of the minority in Al-Kateb, to the effect that his detention was unlawful.

Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?

Federal Court: this decision provides a useful summary of previous court decisions concerning apprehension of bias and the Immigration Assessment Authority

Federal Court (Full Court): the Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). The Appellant argued to the Full Court that a suspended sentence is not a sentence for the purposes of the definition of a "substantial criminal record" under s 501(7).

Federal Court: the Federal Circuit Court (FCCA) made an interlocutory decision to dismiss the Applicant's judicial review application, despite the fact that the Applicant had informed the FCCA that his lawyer had withdrawn from his case the day before the FCCA hearing. Did the Applicant constructively apply for the FCCA hearing to be adjourned by informing it about the claimed lawyer withdrawal? If so, does the same principle apply to AAT hearings?

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?