Direction 99 binding before it commenced?
Federal 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?
Is double counting permitted?
Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?
Cost of detention a relevant consideration in s 501CA(4)?
Federal Court. Did s 501CA(4) of the Migration Act 1958 (Cth) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?
Was there a “matter” before the FCAFC?
High Court. Is it necessary for there to be a "matter" before the Full Court of the Federal Court for it to have jurisdiction in an appeal? If so, can it be said that there was no "matter" before the Full Court "because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals"?
Unrealistic to grant visa if previous visa cancelled based on character?
Federal Court. Can it be said in the context of s 501CA(4) of the Migration Act 1958 (Cth) that, "in any particular case, the practical reality of a person’s situation may be such that although there are theoretical avenues by which their immigration detention might be brought to an end, no such avenue presently has any realistic possibility of materialising"?
Inferior court decisions affected by JE valid until set aside?
Federal Court. Are orders made by a superior court infected by jurisdictional error valid until set aside? Are orders made by an inferior court infected by jurisdictional error valid until set aside?
Does ‘vulnerability’ involve a comparison between victim and offender?
Federal Court (Full Court). Is the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender a relevant vulnerability for the purposes of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of Direction 90?
Irrational not to give weight to family ties?
Federal Court. Was it irrational or legally unreasonable for the Tribunal not to identify for the purpose of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) a rational or intelligible basis for not giving any weight to the applicant’s representations as to her family ties in favour of revocation of the mandatory cancellation of the applicant’s visa?
Attribution of individual weight without explaining overall balancing exercise
Federal Court (Full Court). Is compliance with the Direction 90 achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation, without disclosing any process of reasoning which led from the attachment of weight to each consideration to the ultimate conclusion?
Can removal occur before delegate assesses Ministerial intervention request?
Federal Court. Should there be an implication in s 198(6) of the Migration Act 1958 (Cth) that "the duty imposed on an officer to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion to lift the bar under s 48B(1), until after the Minister made a procedural decision, through the Department following his instructions in the Guidelines, that the request was in a class of case that he either would or would not consider"?