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?
Did s 48A operate even after Tribunal’s decision was substituted under s 417(1)?
High Court. Is the reference to the act of refusal in s 48A of the Migration Act 1958 (Cth) "simply to an historical fact, that has not been set aside in fact, regardless of its legal effect"? Does s 417 on its face confer a power of substitution only, instead of a power to set aside a decision of the Tribunal? Did the Assistant Minister's act of substitution in s 417(1) have the effect of setting aside the delegate's refusal decision?
Refusal to refer cases for Ministerial Intervention exceeded executive power of the Commonwealth?
High Court. Does s 351(1) of the Migration Act 1958 (Cth) involve 2 sequential statutory decisions (the first being procedural and the second being substantive) neither of which the Minister is obliged to make? Were the 2016 Ministerial Instructions an approximation of the 'public interest' (being the test in s 351(1)), with the result that the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers, thereby exceeding the statutory limit on executive power imposed by s 351(3)?
Section 140(1) inapplicable if no longer MOFU?
Federal Court. Does the Federal Court have jurisdiction to review cancellations made under s 140(1) of the Migration Act 1958 (Cth)? Does s 140(1) apply to a person who is no longer a member of the family unit of a person whose visa was cancelled under ss 109, 116, 128, 133A, 133C or 137J?
Section 25(1) of Citizenship Act: a discretion?
Federal Court. Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?
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?
Appeal: can AAT direct a person to attend a medical examination?
Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?
Did AAT have power to determine legality of Minister’s decision?
Federal Court (Full Court). Did the Tribunal have the power, in reviewing a refusal to grant the Respondent a SHEV, to determine whether the Minister had made a jurisdictional error in granting him a temporary safe haven visa under s 195A? Is it an implied condition that the state of mind called for by s 195A, namely that the Minister thinks that it is in the public interest to grant the visa, be formed on the basis of a correct understanding of the law?
“do not live separately and apart on a permanent basis”
High Court. Can a couple live "separately and apart" even when they reside in the same home? Is it possible for a couple who maintain "separate residences" to not be living separately and apart, so long as they live as a "single household"?
Incorrect information vs change of circumstance vs change of mind
If an applicant nominates an occupation in a subclass 485 visa application form and then seeks to change the occupation before the decision, the change can only be made if it stems from a mistake, as opposed to a change of mind; The use of a "change of circumstance" (as opposed to an "incorrect information") form might suggest that the change stems from a change of mind