Rejection to hear oral evidence to be reconsidered after evidence given later?
Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?
Can recidivism risk fall within broad range?
Federal Court (Full Court). Was it permissible for the Tribunal to conclude that the Appellant's risk of recidivism fell within a broad range, namely "from (1) at best, low-moderate; and (2), more likely, a risk of re-offending that is now little or no different than what it was at the time of his most recent removal from the Australian community"?
If topics are distressing, witness is unfit?
Federal Court. Does the "fact that a witness may find answering questions about unpleasant topics distressing and evince an unwillingness to answer ... mean that the witness is not in a fit state to give evidence"? Is the Tribunal "entitled to expect that a legal representative for a party will assist it in avoiding error"? Is the Tribunal: "bound to receive evidence of little probative value"; entitled "to be selective about the quality and quantity of material it will consider in any case"?
Court’s failure to properly apply standard of proof a JE?
Supreme Court of New South Wales (Court of Appeal). Does a court's failure to properly apply the relevant standard of proof amount to jurisdictional error?
Family violence: must doctor be Australian registered to satisfy IMMI 12/116?
Federal Circuit Court. Is a statutory declaration from a psychologist that is in "essentially conclusory terms and was relatively unsupported by evidence of her observations" sufficient to satisfy the requirements for a statutory declaration from a psychologist in IMMI 12/116? Was it "open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116"? Is the validity of an opinion expressed by persons specified in IMMI 12/116 a jurisdictional fact, in the sense of a fact that a court can and should determine for itself on judicial review?
Tribunal allowed to determine whether it had jurisdiction?
Federal Court. Minister sent an invalid invitation under s 501CA(3) to make representations seeking revocation of visa cancellation. Minister then sent an identical invalid invitation weeks later. Applicant made representations within the legislative timeframe calculated by reference to the date of the second, but not the first, invitation. Minister treated the representation as valid and made a decision under s 501CA(4), but challenged representation's validity before the Tribunal. Was the Tribunal allowed to determine whether it had jurisdiction by questioning whether the Minister's decision was valid?
Must discretion to hold phone hearing be exercised reasonably?
Federal Circuit Court. Did the Tribunal have a discretion to hold a hearing by telephone? If so, must that discretion be exercised reasonably? If so, what are the factors relevant to determining whether the exercise was reasonable?
Subclass 309: is affection required?
Federal Circuit Court. Section 5F(1)(b) of the Migration Act 1958 (Cth) provided that the prospective partner visa applicant and her sponsor must "have a mutual commitment to a shared life as husband and wife to the exclusion of all others". Did s 5F(1)(b) require the visa applicant and sponsor to manifest an affection for each other?
Test undertaken before, but result achieved within, 3-year period
Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?
Are obiter dicta binding on the Tribunal?
Federal Court (Full Court). Can the Tribunal depart from convergent obiter dicta from both the Full Court and a single judge of the Federal Court? Section 501(7)(c) of the Migration Act 1958 (Cth) provided that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Did 501(7)(c) apply to sentences of imprisonment imposed by a foreign court?