Cl 13.1.2(1)(b): possibility vs likelihood
Federal Court. Cl 13.1.2(1)(b) of Direction 79 provided that, for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively ... The likelihood of the non-citizen engaging in further criminal or other serious conduct"? Is there a "material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend"?
Para 14(1)(e) & 14.5(1) of Direction 79 interpreted
Federal Court. Is the phrase “extent of impediments if removed” under para 14(1)(e) is given meaning by para 14.5(1) of Direction 79? Is the “extent of impediments” if removed referred to in the chapeau to para 14.5 a mandatory consideration, by reason of para 14(1)(e)? In making a finding about the “extent of impediments”, was it mandatory to consider each of the matters in sub-paragraphs (a) to (c) of paragraph 14.5(1)? If the Tribunal made an error, should the materiality of the error be assessed as a balancing, as opposed to a binary, exercise?
Denial of procedural fairness in relation to one issue material to another issue?
Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal denied the Appellant procedural fairness by finding that the appellant failed the character test on different grounds, namely ss 501(6)(c), (d)(i) and (d)(ii), without giving him any notice that it might do so. Was the error material, even though he failed the character test because of s 501(6)(a)?
Was there a “matter” before the FCAFC?
High Court. Is it necessary for there to be a "matter" before the Full Court of the Federal Court for it to have jurisdiction in an appeal? If so, can it be said that there was no "matter" before the Full Court "because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals"?
Direction 79: 13.1.1(1)(b), 13.1.2 and 13.2(4)
Federal Court. Direction 79 provides: "crimes of a violent nature against women or children are viewed very seriously". AAT set aside delegate's decision not to revoke under s 501CA(4) the mandatory cancellation of the Applicant's visa under s 501(3A). AAT said that Applicant had "committed offences of violence which relate to vulnerable people" and found that those offences were "serious", not "very serious". Did that finding in itself constitute a jurisdictional error? Does para 13.1.1(1)(b) state that "crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed"? Does para 13.1.2 require AAT to "reach a decision on the nature of the harm that might be involved"? Did AAT engage with para 13.2(4)?
Court commits JE whenever it omits to deal with each explanation for delay?
Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?
s 473DC: are exceptional circumstances required?
Federal Court: IAA affirmed visa refusal. Its reasons included: "The report was not before the delegate... I note that the applicant has engaged a representative to assist with the IAA process; however I am not satisfied that the mere engagement of a representative can be considered exceptional". FCA said that "EMJ17 is authority to support the submission that it can be a jurisdictional error to conclude that the absence of 'exceptional circumstances' within the meaning of s 473DD(a) means that the discretion under s 473DC cannot be exercised in favour of getting new information". Does the IAA's decision here "[display] the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist"?
MARA: “accepting instructions from an intermediary”
DHA lodged complaint against RMA. To what extent should RMAs: obtain instructions directly from clients, instead of 3rd parties; undertake checks to verify the authenticity of documents; compare different signatures to confirm documents were signed by the same person? Should RMAs alert DHA or MARA to frauds? Can metadata be used to determine whether RMA misled MARA? If MARA asks for copies of "any" correspondence, does it mean only any "relevant" correspondence? If client asks for an RMA to call back later, does this constitute instructions?
Materiality: does Hossain always apply?
Federal Court (Full Court): in a separate (but not in dissent) judgement, Mortimer J held that the High Court's materiality test in Hossain did not apply to procedural fairness and legal reasonableness
Can former Minister be orally interrogated?
Federal Court. Was it the Respondent, not the Hon Karen Andrews MP (the now former Minister), who had the responsibility to answer the interrogatories administered by the Registrar? Could Ms Andrews be compelled under Part 21 of the Federal Court Rules 2011 (Cth) to answer the interrogatories? Was Ms Andrews authorised under r 21.04(1) of the Rules to make an affidavit verifying her answers? Could Ms Andrews be compelled to attend before the court or a registrar for oral interrogation under r 21.05(b) of the Rules?