Is “good reason” needed to depart from costs scale?
Federal Court. For migration proceedings in the Federal Circuit and Family Court, is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?
Materiality: is question whether decision was inevitable?
Federal Court. Is the materiality test question whether the result, in the absence of error, was inevitable? In assessing materiality, would a court be usurping the statutory task entrusted to the decision-maker if it formed its own view as to what the result should have been in the absence of error?
Criminal conduct an independently relevant consideration?
Federal Court (Full Court): Is para 12.3(1) of Direction No 65 concerned with the effects of a crime on a victim and their family? Or is it concerned with the additional impact of a decision to grant a visa on the victim and their family? If the latter applies: could AAT nonetheless deal with Appellant's criminal conduct as "an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1)"; if AAT treated para 12.3(1) as concerned with the effects of the crime (as opposed to the effect of visa grant) on the victim and their family, does it necessarily follow that AAT made a jurisdictional error?
Are road users obviously vulnerable members of community?
Federal Court. Was the adverse conclusion that the Applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction 90 one not obviously open on the known material, with the result that the Tribunal not putting the Applicant on notice of it amounted to a denial of procedural fairness?
Can courts order release of detainees on interlocutory basis?
Federal Court. Is s 196(4) of the Migration Act 1958 (Cth) limited "to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief)"?
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?
When is a citizenship application ‘made’?
Federal Court. Was the day the person made an application for citizenship the day it was dispatched? Or was it made the day it was received by the Minister?
Released from a detention centre due to covid-19 risks
Federal Court. Court ordered that Minister cease to detain the applicant at the Melbourne Immigration Transit Accommodation centre (MITA) due to the risk of covid-19 entering the MITA and then infecting the applicant. In practical terms, this means Minister will need to place applicant at a different detention centre.
Love/Thoms interpreted
Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?
Can impact on victims weigh in favour of non-citizen?
Federal Court. A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law? Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?