Can AAT direct a person to attend a medical examination?
Federal Court. Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy?
Waiving apprehension of bias claim?
Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...
Meaning of ‘end of the day’: appeal
Federal Court (Full Court). Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth), due to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Before cancelling the visa under s 501(3A), was Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision? Did 8.1.1(1)(a) of Direction 90 require the Tribunal to make its own assessment of the seriousness of the offending?
Overlap between natural justice and legal reasonableness?
Federal Court. Do the "obligations to accord natural justice and the obligation to act within the bounds of legal reasonableness are closely linked and overlap to some extent"? Does "the codifying effect of s 473DA(1)" mean that, "except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness is not the “lens” through which the content of procedural obligations imposed on the Authority in the conduct of a review is to be determined"?
Does materiality have to be “formally placed in issue” before that onus arises?
Federal Court: In SZMTA, the High Court had held that materiality "is a matter of fact on which the appellant bears the onus of proof". However, can it be said that "materiality has to be formally placed in issue before that onus arises"?
Risk of reoffending a mandatory consideration in s 501A(3)(b)?
Federal Court. Is the risk posed by the non-citizen in question to the Australian community a mandatory relevant consideration for the Minister when exercising the discretion under s 501A(3)(b) of the Migration Act 1958 (Cth)?
Best interests of unborn child?
Federal Court: In deciding whether to affirm a decision to refuse a visa under s 501(1) of the Migration Act 1958 (Cth), the AAT was bound by Direction No 65, cl 11.2 of which made it mandatory for decision makers to consider the best interests of minor children affected by the decision. Was the AAT bound to consider the best interests of the Applicant's unborn child? Note: cl 11.2(4) of Direction No 65 was almost identical to cl 9.2(4) of the current direction, namely Direction No 79.
“Other serious conduct” limited to criminal conduct or convictions?
Federal Court (Full Court). Are the words “other serious conduct” referred to in cl 8.1(1) of Direction 99 limited to criminal conduct or criminal convictions?
Does s 501CA(4) require consideration of non-refoulement obligations?
High Court. Could the materiality test be expressed by saying that a person affected by an error "would need to show that there was at least a possibility" of a different outcome, had the error not been made? Is there anything "in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim"?
High Court: non-disclosure certificates
The fact of notification by the Minister to the AAT that disclosure of information would be contrary to the public interest triggers a procedural fairness obligation on the part of the AAT to disclose that fact to the review applicant; incorrect notification may lead to jurisdictional error; content of notification may be admissible in court for the purposes of materiality