Minister circling option = making decision? Part 2
Federal Court. In an FCA decision we recently summarised, the Minister's application for leave to appeal from a decision where he was ordered to answer an interrogatory aimed at determining whether he had turned his mind to a decision was dismissed. In a different case extracted in this article, one of the questions to the FCA was whether it should use its discretion to refuse to grant leave to the Applicant for an interlocutory application seeking a very similar interrogatory, because of the “impracticalities” presented by the possibility of portfolio Ministers being overwhelmed with interrogatories.
Cancellation revocation: applicant’s conduct as a child
Federal Court: AAT made jurisdictional error by characterising applicant's actions as a 9-year-old as 'offences'
Request under s 91W
Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?
Injunction sought pending the outcome of an appeal
Federal Court: The rules that govern an application for injunction at first instance are not the same as those that operate on appeal. This court decision summarises the general principles that govern an application for injunction pending the outcome of an appeal.
Appeal: ss 501G(3) and 494A(1) and r 5.02 interpreted
Federal Court (Full Court). Can it be said that "s 501G(1) when read with reg 5.02, does not state that the document must be given by a method prescribed for the purpose of giving documents to a person in immigration detention, and the Minister may, by operation of s 494A(1), give the document to a person by any method that he or she considers appropriate"?
Makasa applicable to re-exercise of discretion?
Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?
AAT limited to issues considered by delegate?
Federal Court. Is the Tribunal "confined to whatever may have been the issues that the delegate considered"? In other words, is the Tribunal confined to considering the same visa criteria assessed by the delegate?
Procedural fairness & information volunteered
Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?
Interpreting provisions that grant courts jurisdiction
High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?
Regs 2.55(7)(a) & 2.52(2)(b) interpreted
Federal Court (Full Court). Does the deeming effect under r 2.55(7)(a) apply to r 2.52(2)(b)? Does the mere fact that a State prison can be a place of immigration detention mean that a person held there is "in immigration detention"? Can it be said that "the act of “an unidentified person” giving him the notice of cancellation cannot amount to “service” within the meaning of" r 5.02?