Section 423A: a code for drawing unfavourable inferences?
Federal Court. Does s 423A of the Migration Act 1958 (Cth) codify the circumstances in which the Tribunal may draw an unfavourable inference?
Section 423A: “claim” = singular factual allegation?
Federal Court. For the purposes of s 423A, is a “claim” to be equated with a singular factual allegation? Were the “clear particulars” the Tribunal was obliged to provide to the appellants under s 424A “clear particulars” of the "information that the Tribunal considered rightly or wrongly would be a reason or part of a reason for affirming the decision under review"?
Intersection between s 39(1) of AAT Act and s 500(6L) of Migration Act
Federal Court (Full Court). Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law? Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?
Are strangers and members of the public vulnerable members of the community?
Federal Court. Can it be said that the Tribunal's conclusions that the applicant's crimes against other road users, strangers and members of the public going about their daily lives were crimes against vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction No. 90 were not obvious, with the result that procedural fairness required the Tribunal to put those conclusions to the applicant?
If Minister invites submissions under s 501BA(2), does NJ apply?
Federal Court. Where the Minister by his or her conduct invites further submissions for the purpose of exercising the personal power in s 501BA(2) of the Migration Act 1958 (Cth), is the Minister thereafter compelled to consider that material, even though s 501BA(3) provides that the rules of natural justice do not apply to s 501BA(2)?
Does s 65 confer a discretion?
Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?
Section 48A bar reset by ministerial intervention?
Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?
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"?