Can a provision in Direction 90 cover the field?
Federal Court (Full Court). Is the word “should” in para 8.4(4) indicative of a requirement that must be followed (i.e. that is mandatory)? Is it doubtful that the Tribunal can permissibly have independent regard to community expectations as assessed by it, given the Direction’s express provisions with regard to that subject which can be expected to cover the field?
Is “good reason” needed to depart from costs scale?
Federal Court. For migration proceedings in the Federal Circuit and Family Court, is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?
Is Gillera plainly wrong?
Federal Court. Did the withdrawal of the appellant's visa application occur by operation of s 49 of the Migration Act 1958 (Cth), with the result that: a) no decision was made in order for the withdrawal to take effect; b) there was no failure or refusal on the part of Minister to make a decision in relation to the visa application; c) the Minister did not make a "migration decision"; d) the Federal Circuit and Family Court had no jurisdiction under s 476 of the Act to review the withdrawal?
Para 9.2(1) of Direction 99 limited by para 9.2(1)(a)-(c)?
Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?
Appeal: “choice” to provide natural justice conditioned by legal reasonableness?
Federal Court (Full Court). Is the Minister's ‘decision’ not to afford natural justice in exercising power in s 501BA(2) a migration decision listed in any of s 476A(1)(a)-(d), with the result that the Federal Court lacked jurisdiction to review that 'decision'? Was the power in s 501BA conditioned by an obligation to consider whether to afford procedural fairness? If not, can it nevertheless be said that "the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality"?
Are the Model Litigant Principles actionable?
Federal Court (Full Court). Section 55ZF of the Judiciary Act 1903 (Cth) provides that the Attorney-General may issue "Legal Services Directions" that are to apply generally to Commonwealth legal work. Section 55ZG provides that some persons or bodies such as the Commonwealth "must comply with Legal Services Directions". Is a breach of one of those directions, the Model Litigant Principles, actionable?
Offending as a minor irrelevant to s 501CA(4)?
High Court. Was the Respondent's finding of guilt as a child made without recording of a conviction, with the result that his offending as a minor was an irrelevant consideration and that the Minister's consideration of it was erroneous, even if the Respondent referred to his offending as a child in his submissions to the Minister?
AAT acting under dictation by accepting previous AAT’s reasons?
Federal Court. Could the Tribunal act under dictation by the decision of a previous Tribunal or give automatic effect to it? Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?
Bar in s 501E an immediate consequence of exercise of s 501BA power?
Federal Court. Is the statutory bar imposed by s 501E of the Migration Act 1958 (Cth) an inevitable, immediate and direct consequence of the Minister exercising the power conferred by s 501BA, with the result that such a consequence has to be considered when exercising that power?
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)?