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)"?
Materiality of erroneous finding that detention is indefinite
Federal Court. In assessing s 501CA(4), if the Tribunal erroneously finds that detention is indefinite, is the error nevertheless immaterial to the outcome, in that "being released from immigration detention is less of an imposition on a person than being held in immigration detention, even in circumstances of statelessness and the considerable insecurity that that necessarily brings"?
Request under s 91W
Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?
Injunction even though duty in s 198 must be performed?
Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?
Appeal: error re-exercising s 501(2) immaterial if further conviction could have been relied on?
Federal Court (Full Court). The respondent was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the respondent was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the respondent failed the character test?
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?
Appeal: Direction 99 binding before it commenced?
Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?
Al-Kateb overruled ab initio?
Federal Court. In NZYQ, the High Court overruled its decision in Al-Kateb. Here, at the time of the Minister's decision, Al-Kateb was still considered good law. Did the Minister's reliance on Al-Kateb shield his decision from jurisdictional error, as it represented the law at the time? Or has NZYQ rather overruled Al-Kateb ab initio (i.e. with retrospective effect)?
Appeal: cancellation under s 501(3A) on the day of release?
Federal Court (Full Court). The respondent gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell. Does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?
Does Direction 90 involve double counting?
High Court. Is para 8.2 of Direction 90 invalid, based on the proposition that "family violence can be relevant only to the protection of the Australian community (under para 8.1) or to the expectations of the Australian community (under para 8.4)"? Does the attribution of weight to family violence under paras 8.1, 8.2 and 8.4 involve double counting?