AAT’s copying of respondent’s submissions mostly verbatim
Federal Court (Full Court). In reviewing a non-migration decision of the respondent, the Tribunal copied 64 of the 67 paragraphs of the respondent's submissions without attribution or saying that it agreed with what the respondent had submitted. Did the Tribunal fail to properly exercise its jurisdiction to conduct a "review" of the kind it was required to conduct?
Is extortion, by definition, underpinned by threat?
Federal Court. Does a finding that particular harm is not serious for the purpose of s 36(2)(a) of the Act necessarily lead to a corresponding finding that it is not significant harm for the purpose of s 36(2)(aa) of the Migration Act 1958 (Cth)?
No obligation to provide reasons: lesser standard?
Federal Court (Full Court): Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made? Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given? Are decision-makers bound by policy?
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?
Is cl 8.5(2) of Direction 110 exhaustive?
Federal Court. Is the conduct listed in cl 8.5(2) of Direction 110 exhaustive for the purposes of cl 8.5?
Legally unreasonable to consider lack of response to NOICC?
High Court. Can it be said that it is "not reasonably open to a decision maker, when exercising their discretion to cancel a visa under s 116 of the [Migration Act 1958 (Cth)], to take into account a failure to respond to an NOICC [Notice of Intention to Consider Cancellation] in a manner adverse to a visa holder, as there is no legal requirement for a person to respond to such a notice"?
Direction 79: express ascription of weight & double counting
Federal Court. Cl 8(3) of Direction 79 provides: "Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa". Must decision-makers make express findings on each of those considerations? When considering under cl 14.5 the extent of impediments if Applicant were removed, AAT found it "appropriate to afford the expectations of the Australian community moderate weight in favour of non-revocation", which expectations had already been considered. Was AAT allowed to double-count those expectations?
New ground justified by change of representation?
Federal Court (Full Court). Is the change of legal representation on appeal usually sufficient to justify the grant of leave to rely on ground of judicial review not relied on at first instance?
How long should matters be considered for before decision?
Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?
AAT’s jurisdiction where case officer has no authority
Federal Court (Full Court): If a case officer has received no delegation of authority to cancel a visa under s 109 of the Migration Act 1958 but does so anyway, does the Tribunal have jurisdiction to review that cancellation? If so, is the Tribunal's power limited to setting aside the original decision?