Must AAT consider information considered by previous AAT?
Federal Court. If a decision-maker first states its conclusion and then talks about the evidence concerning that conclusion, does that indicate the decision-maker made the conclusion without considering that evidence? Does s 416 require AAT to refuse to consider the information that was before a previous AAT, or to have regard to the previous AAT's decision, or to take it to be correct? Can AAT adopt or accept the conclusion or the process of reasoning of a previous AAT in whole or in part?
Para 8.2(2)(b) of Direction 99
Federal Court. Does the inclusion of a specific procedural fairness requirement into para 8.2(2)(b) of Direction 99 require something more or something different than usual procedural fairness under 501CA(4) of the Migration Act 1958 (Cth)? If so, what is that "something more"?
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?
Section 360: obligation to invite on a ‘once and for all’ basis?
Federal Court. Can it be said that the obligation under s 360 of the Migration Act 1958 (Cth) to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened? Are issues which emerge during a hearing also subject to the obligation imposed by s 360?
Meaning of “danger” in s 36(1C)(b)
Federal Court. A criterion under s 36(1C)(b) for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, "having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?
Obligation to consider claims outside of non-refoulement obligations?
Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?
Must discretion in s 427(1)(a) be exercised reasonably?
Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?
Para 9.1(1) of Direction 90 interpreted
Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?
Jurisdictional error in simple English
According to the majority, jurisdictional error consists of a material breach of a condition of the exercise of a decision-making power. ‘Ordinarily... breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision'.
FCA has jurisdiction for damages in tort? Multiple parties in migration litigation?
High Court: Under s 44(2A) of Judiciary Act 1903, HCA can remit a matter involving the Commonwealth to FCA. But under s 476B of Migration Act 1958, HCA can only remit a matter that relates to a migration decision to FCA if FCA has jurisdiction under ss 476A(1)(b) or (c). Can it be said that the reach of ss 476B and 476A "is confined to applications for public law remedies in the nature of judicial review of migration decisions and so does not deprive the [FCA] of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment the result of the Commonwealth allegedly taking too long in making a migration decision to grant or refuse a visa"? Did s 486B preclude the plaintiff from bringing the claim in tort as a class action or representative proceeding?