Case Law Updates

Federal Court. Is the fact that an applicant is self-represented before the Tribunal a relevant circumstance which impacts the question of the fairness of the procedure adopted by the Tribunal?

Federal Court. May there "be overlap between a failure to afford an opportunity to be heard, and a reasonable apprehension of bias on the ground of pre-judgment, because the former may give rise to the latter"?

Federal Court. Does family violence include belittling, intimidating, frightening, or similar conduct directed to the person claiming to be the victim of domestic violence? Can it be said that, instead of being obliged to accept the evidence that was before her, the independent expert was required to make her own, independent assessment as to whether or not the appellant was a victim of relevant family violence?

Federal Court (Full Court). Can it be said in the context of s 501CA(4) that "there is no foundation for the submission that [the administrative decision-maker] erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made"?

Federal Court. Could a subsequent s 501(3A) cancellation decision rely on a conviction if that conviction was previously taken into account when deciding to revoke a mandatory cancellation?

Federal Court. In the context of s 36(1C)(b) of the Migration Act 1958 (Cth), is the state of an applicant's mental health now and into the future a matter which is only to be counted to the extent that it favours the applicant?

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. Is the effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt? Did s 36D(1) of the Australian Citizenship Act 2007 (Cth) purport to vest such a power to impose additional or further punishment in the Minister? If so, is s 36D invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

Federal Court (Full Court). Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth), due to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Before cancelling the visa under s 501(3A), was Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision? Did 8.1.1(1)(a) of Direction 90 require the Tribunal to make its own assessment of the seriousness of the offending?

Federal Court (Full Court). Where the Tribunal affirms a decision or remits it to the original repository of the power, is it exercising a power under the Migration Act 1958 (Cth), with the result that its decision is exempt from the validation provisions of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act)? If so, is that decision nevertheless exempt from the validation provisions of the Amending Act, as the Tribunal “did something else” within the meaning of item 2 of Sch 1 of the Amending Act?