Direction 65 made DFAT report a mandatory consideration?
Federal Court: Ministerial Direction No 65, now replaced by Direction No 79, provided as follows: "Where the [DFAT] has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making that decision". Are decision makers obliged to consider DFAT reports when making decisions to which Direction No 65 applies?
What are the “expectations of the Australian community”?
Federal Court (Full Court): Direction 65, which for the purpose of this decision was identical to Direction 79, required the Tribunal to take into account a number of considerations in deciding whether to refuse a visa under s 501 of the Migration Act 1958 (Cth). One such consideration was labelled the "expectations of the Australian community". Are those expectations pre-determined by the direction itself as deemed expectations? What is the content of those expectations?
What happens when applicants, Tribunals and Courts are delayed?
Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?
Genuine, yet a bogus document?
Federal Circuit Court. Can a document that itself is genuine meet the definition of a 'bogus document' by having been fraudulently obtained?
Was Omar wrongly decided?
Federal Court: This decision considered previous decisions on whether an administrative decision-maker is required to consider Australia's non-refoulement obligations in the context of exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke mandatory cancellation of a visa pursuant to s 501(3A). The central question to the FCA was whether it had wrongly decided Omar.
Interlocutory injunction in the context of s 48B
Federal Court. Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention? Can it be said that, although any potential harm to the applicant if he is removed is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?
Can Federal Court review its own decisions otherwise than on appeal?
Federal Court (Full Court). Does it follow from the failure to reference certiorari in s 39B of the Judiciary Act, that [the Federal Court] lacks jurisdiction to grant relief of that character, the effect of which is to quash an impugned decision"? Can it be said that the Federal Court "has jurisdiction (not by way of an appeal regularly brought) to review decisions made by its judges"?
Does Direction 90 involve double counting?
High Court. Is para 8.2 of Direction 90 invalid, based on the proposition that "family violence can be relevant only to the protection of the Australian community (under para 8.1) or to the expectations of the Australian community (under para 8.4)"? Does the attribution of weight to family violence under paras 8.1, 8.2 and 8.4 involve double counting?
r 36.75 of the Federal Court Rules 2001
Federal Court. Is the power under r 36.75(2) of the Federal Court Rules 2001 (Cth) to set aside or vary an order dismissing an appeal discretionary? What are the relevant considerations in the exercise of the power under r 36.75(2)? Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?
Exceptions to the rule against re-litigation
Federal Court: Parties to a court dispute cannot litigate the same issues more than once, although appeals are not considered re-litigation. There are exceptions to the rule against re-litigation: res judicata, issue estoppel and Anshun estoppel, which are "subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes"; abuse of process by re-litigation; untenable claims; and judgement obtained by fraud.