“Person” in s 5J(6)
Federal Court. Is the “person” in s 5J(6) of the Migration Act 1958 (Cth) the same person throughout that subsection? If a parent’s evidence in relation to a claim for protection is not regarded as credible, does that "relieve the Tribunal from separately considering claims made by a child"?
Thornton applicable to NSW offences?
High Court. In Thornton, the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) precluded consideration of offences committed in Queensland by the respondent to that case when he was a child in the determination of whether to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). Does Thornton apply to offences committed by children in NSW?
Section 109 of the Constitution interpreted
High Court. Can it be said that the type of invalidity effected by s 109 of the Constitution does not render the State law void or beyond State legislative power, but instead renders the State law "inoperative"? If so, does it follow that, "on and from the Commonwealth law ceasing to have effect, the State law resumes its full force and effect"?
Abandonment of claim: a question of fact?
Federal Court. The Appellants made invalid protection visa applications and then validly applied for visas subclass 785. Is the question of whether the Appellants abandoned a claim for the purpose of the valid visa applications a matter of fact? Did they abandon that claim? Was MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 analogous to the facts of the present case?
Unincorporated law firm entitled to costs for employed solicitor’s work?
High Court. Does an order for costs in favour of an unincorporated law firm entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm?
Non-compliance with s 486D(2) fatal to proceeding?
Federal Court. Is a failure to disclose other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision fatal to the latter proceeding?
AAT’s too narrow approach on reinstatement decision
A reinstatement decision by the AAT focusing only on whether the appellant had been properly notified of the hearing was 'too narrow', given that the appellant's arguments on the reinstatement application had not been so confined.
Is notification of a decision a decision?
Federal Court: a previous FCA judgement had held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). Does the same principle apply to visa cancellation revocation notices issued pursuant to s 501CA(3)?
Can AAT consider criteria not considered by delegate?
In CPJ16, FCA had determined whether AAT could consider criteria within s 501(6) not considered by original decision-maker. Here, delegate had refused to grant protection visa based on cl 866.222. By the time of AAT's decision on review, that provision had been disallowed and thus no longer applied. Question to AAT was whether to remit the matter to Department with a direction that cl 866.222 did not apply or assess for itself the other criteria for the grant of the visa. It chose the latter. Was AAT authorised to do that? With respect, this decision makes no reference to CPJ16, which was on point, although concerning a different provision.
Reconsider what you know about the scope of merits review
We have always thought that the Tribunal can expand the scope of a merits review by considering issues and provisions not considered by the Department. However, according to this landmark Federal Court decision, that is not always the case. We explain why and how practitioners can use this decision in favour of their clients in terms of limiting the scope of the Tribunal's review. By limiting that scope, clients could have 2 chances to have each issue or provision assessed on their merits, one at the Department level and another at the Tribunal level.