Trading at a loss fatal to rr 5.19(5)(n) or (9)(g)?
Federal Court. For the purpose of the old version of r 5.19(3)(d)(i), now arguably reflected in rr 5.19(5)(n) and (9)(g) of the Migration Regulations 1994 (Cth), does the circumstance that a nominator "has either generated modest profits or indeed has traded at a loss in any year or years" of itself "give rise to a conclusion that the person (nominee) will not be employed on a full-time basis in the position for at least two years, [the nominator] having contended that it would so employ the nominee and having put material before the Tribunal to that effect"?
Section 25(1) of Citizenship Act: a discretion?
Federal Court. Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?
Claim based on need to support family more likely to clearly emerge?
Federal Court. Can it be said that a protection "claim based on the need to support one’s family is more likely to “clearly emerge” from the material given the fundamental relevance of the matter in human terms"? Does the "review material" before the Immigration Assessment Authority include the delegate's decision?
Not liable to s 189 detention if not an alien?
High Court. Can it be said that a non‑citizen who does not have a visa that is in effect is not liable to detention under s 189(1) of the Migration Act 1958 (Cth) if they are not an alien? Can it be said that, "what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time"? In other words, can it be said that what constitutes reasonable grounds cannot be invalid ab initio?
Non-applicability of Ministerial Direction a mandatory consideration?
Federal Court. Was the Minister “required to consider the “direct and immediate statutorily prescribed consequences” of the s 501(3) cancellation decision he was contemplating”? If so, was the non-applicability of the relevant ministerial direction (Direction No. 79) a “direct and immediate statutorily prescribed consequence” of the Minister’s s 501(3) decision that the Minister ought to have considered”?
Direction 90: is order of factors relevant?
Federal Court (Full Court). Was the Tribunal permitted for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) to consider the combined influence of cll 9.4.1(2)(a) and (b) of Direction 90 as constituent parts of the “other ties” consideration in cl 9.4.1(2) and apply the abating effect under cl 9.4.1(2)(a)(i) to that consolidated whole?
Are the ss 501CA(4)(b)(ii) & 501(1) discretions closely analogous?
Federal Court. Does s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) involve a discretion? If so, is that discretion closely analogous discretion to the discretion under s 501(1)?
s 501CA(4): possible to revoke visa cancellation after expiry?
Federal Court. Did the ability lawfully to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the cancellation of a visa "expire with the expiry of what would otherwise have been the duration of the term of the visa"? In other words, can it be said that the ability to revoke the cancellation did not exist, as revocation would merely restore an already expired ('stillborn') visa?
PIC 4020 waiver: was separation period a mandatory consideration?
Federal Court. Did the Tribunal need to form a view pursuant to PIC 4020(4)(b) about the likely period of separation before determining whether PIC 4020(1) should be waived?
s 477(2): Court limited to impressionistic assessment level?
Federal Court (Full Court). Can it be said that, "when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order [under s 477(2) of the Migration Act 1958 (Cth)] to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless”?