Material failure to comply with Direction 63
Federal Court. Paragraph 116(1)(g) provided that the Minister may cancel a visa if "a prescribed ground for cancelling a visa applies to the holder". Reg 2.43(1)(p)(ii) prescribed the following ground: "in the case of the holder of a Subclass 050 ... or ... 051 ... visa - that the Minister is satisfied that the holder ... has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country". Does a material failure to comply with Direction 63, issued under s 499, lead to jurisdictional error?
Cumulative materiality?
Federal Court. Is the materiality threshold high? Can individual errors which in and of themselves are immaterial nevertheless be cumulatively material?
Materiality test: is threshold demanding or onerous?
High Court. Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?
Clause 8.1.1(1)(d) of Direction 110 interpreted
Federal Court. Did cl 8.1.1(1)(d) of Direction 110 require the identification of a person or persons affected by the offending or the conduct?
Injunction even though duty in s 198 must be performed?
Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?
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?
Federal Circuit and Family Court orders affected with JE of no legal effect?
High Court. Can it be said that "an order of an inferior court that is affected by jurisdictional error has no legal force as an order of that court so that, for example, a failure to obey such an order cannot be a contempt of that court"?
s 501(3A): cancellation invalid ab initio?
Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?
Direction 99 binding before it commenced?
Federal Court. The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?
Another attempt to distinguish Ibrahim
Federal Court: The Full Court had decided in Ibrahim that the Minister had conflated Australia's non-refoulment obligations under international law with the protection obligations under the Migration Act 1958 (Cth). The Minister sought to distinguish Ibrahim on the basis that, here, he had accepted the findings made by an ITOA regarding non-refoulment obligations and had considered the Appellant's claim of harm "outside of the concept of non-refoulement", thus suggesting that there had been no conflation.