Does s 36(1C)(b) call for a comparative exercise?
Federal Court. Does s 36(1C)(b) of the Migration Act 1958 (Cth) call for "comparative exercise to assess whether the grant of a protection visa would result in an increase in the danger to the community posed by the applicant over the danger to the community posed by the applicant if a protection visa were not granted"?
Section 36B of the Citizenship Act invalid?
High Court. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid because it is not supported by a head of Commonwealth legislative power or because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Can courts weigh in on ‘weight’?
Federal Court. Although the weight to be ascribed to evidence is a matter for administrative decision-makers, can a court in some circumstances "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance"? In determining whether an administrative decision is legally unreasonable, is it to the point that it might be characterised as cruel or inhumane?
Interpreting sections 104, 114, 140 & more
Federal Court (Full Court). What is the meaning of "only because" in s 140(2)(a) of the Migration Act 1958 (Cth)? If the Federal Court sets aside an AAT decision to affirm a decision made under s 140 to cancel a visa, is that visa "taken never to have been cancelled", by reason of s 114(1)? Is a visa sponsor obliged under s 104 to notify the Department about a change in circumstance? Was AAT prevented from making decision under s 140(2) by reason of s 140(3)? Was the meaning of "parent" in s 15 of the Births, Deaths and Marriages Registration Act 1995 (NSW) confined to "biological parent"?
Indifference to fraud: a low threshold?
Federal Court. Does the Briginshaw principle favour a conclusion that a person's onus of proving that they were not recklessly indifferent to fraud is low? Is there anything untoward about a client attending the office of a practitioner for the purpose of procuring their services and making an upfront payment? Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?
s 376: information not given in confidence, due to an iniquity?
Federal Court (Full Court). Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"? Was s 376(1)(b) of the Migration Act 1958 (Cth) such that "the relevant quality of confidence attaches to the information at the point the information is given"?
Privilege against self-incrimination: is there a materiality threshold?
Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?
Direction 79: treating balancing exercise as a discretion an immaterial error?
Federal Court. Did the Tribunal err by assuming that its task was a ‘re-exercise’ of a general discretion having regard to the considerations in Direction 79? If so, but the Tribunal nevertheless engages in a balancing exercise of the factors set out in Direction 79, might the error be immaterial, as such a balancing exercise is, in substance, the same as the exercise involved in the exercise of a discretion?
Minister bound by AAT’s factual findings?
Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?
Illogical to ignore 7 years of no offending in finding lack of rehabilitation?
Federal Court. Can it be said that, "for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic" and/or is legally unreasonable?