Section 36D(1) of Citizenship Act unconstitutional?

High Court. Is the effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt? Did s 36D(1) of the Australian Citizenship Act 2007 (Cth) purport to vest such a power to impose additional or further punishment in the Minister? If so, is s 36D invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?

Meaning of ‘end of the day’: appeal

Federal Court (Full Court). Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth), due to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Before cancelling the visa under s 501(3A), was Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision? Did 8.1.1(1)(a) of Direction 90 require the Tribunal to make its own assessment of the seriousness of the offending?

Act addressing Pearson not applicable to AAT decisions?

Federal Court (Full Court). Where the Tribunal affirms a decision or remits it to the original repository of the power, is it exercising a power under the Migration Act 1958 (Cth), with the result that its decision is exempt from the validation provisions of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act)? If so, is that decision nevertheless exempt from the validation provisions of the Amending Act, as the Tribunal “did something else” within the meaning of item 2 of Sch 1 of the Amending Act?

Is the Act addressing Pearson unconstitutional?

Federal Court (Full Court). Does item 4 of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) involve a usurpation of judicial power? Does item 4 have the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution? Do items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?

Can family violence be considered without consideration of who constitutes family?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?

Error re-exercising s 501(2) immaterial if further conviction could have been relied upon?

Federal Court. The applicant 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 applicant 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 applicant failed the character test?

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?

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