Direction 79: cll 13.2(4), 6.3(4), 13.2(4)(a) & 14.2(1)(a) interpreted

Federal Court. For the purpose of addressing the consideration in cl 6.3(4) of Direction 79, can it be said that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test and that there is a deemed expectation by the use of the preface “The Australian community expects”?

Can AAT go behind sentencing remarks?

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?

Unrepresented applicants & claims emerging from the materials

Federal Court. There is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials. But will a court be more willing to make that finding in favour of an unrepresented party?

Recusal application

Federal Court (Full Court). One of the judges of the Full Court had appeared as the Commonwealth Director of Public Prosecutions in a conviction appeal on a point of law involving the non-citizen in question. The non-citizen's representative applied for that judge to recuse himself from hearing the appeal from an FCA decision dismissing a judicial review application.

Materiality necessary in legal unreasonableness and non-compliance with s 424A(1)?

Federal Court. Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"? Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?

Best interests of children relevant to partner visa applications?

Federal Court. In considering whether an applicant for visa subclass 309 (partner) was a de facto partner of the visa sponsor, was the Tribunal allowed to consider the best interests of the affected children or related issues or "any hardship that might be occasioned by refusal of the visa, be that to the visa applicant, the sponsor, or their children"?

Res judicata & Ashtun estoppel: is judicial review the “cause of action”?

Federal Court. In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata or Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"? Was the Tribunal entitled to consider an ITOA and its conclusion for the purpose of s 501CA(4)? Was Tribunal required to be satisfied of Art 1C of the Convention?

s 501A(2): can Minister rely on matters not put by him to AAT?

Federal Court. In order for an error (or errors) in the form of legal unreasonableness in a decision-making process to be labelled "jurisdictional", is it necessary for the materiality of the error to be established as a separate, additional element? Does Makasa apply to s 501(1)? In exercising the power under s 501A(2) to override a decision of the Tribunal, can the Minister rely on matters that were known to him at the time of the Tribunal hearing but not put by him (or on his behalf) to the Tribunal?

Reg 1.15AA(1)(e) interpreted

Federal Court. Can it be said that, in forming a view, for the purposes of r 1.15AA(1)(e) of the Migration Regulations 1994 (Cth), "as to whether the assistance cannot reasonably be (a) provided by any other relative of the resident (being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), or (b) obtained from welfare, hospital, nursing or community services in Australia, it is necessary for the Tribunal to have regard to the nature and extent of the relevant person’s need for direct assistance in attending to the practical aspects of daily life"?

cl 14.5 of Direction 79: offsetting of factors allowed?

Federal Court. Was the Tribunal allowed to 'net off’ or offset against one another the various factors that it took into account when considering under cl 14.5 of Direction 79 the extent of impediments that the Applicant may face if removed from Australia?

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