Intersection between constitutional and administrative laws
Supreme Court of New South Wales. Is the question of whether, in applying a legislative power or discretion that does not infringe on the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law? If not, does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?
Costs when proceedings rendered moot by visa grant
Federal Circuit and Family Court. May a court "award costs where an underlying dispute is rendered moot, even where a decision is not delivered"? If so, where "the relevant supervening event occurs after a trial on the merits, with full argument and submissions from the parties, but before the decision is handed down", will those arguments hold greater weight in the decision whether to make a costs order? Should no order be made, as both sides got what they wanted?
A “fast track applicant” presumed to be a “fast track review applicant”?
Federal Court. Is a "fast track applicant" a "fast track review applicant" unless and until the Minister forms the opinion that he/she is an "excluded fast track review applicant", with the consequence that, until and if that opinion is formed, a refusal to grant him/her a protection visa should be referred to the IAA even if the applicant, objectively, "has made a claim for protection in a country other than Australia that was refused by" that country or the UNHCR Office?
FCC jurisdiction limited to judicial review?
Federal Court (Full Court). Is the jurisdiction of the Federal Circuit Court (FCC) conferred by s 476 of the Migration Act 1958 (Cth) limited to remedies by way of judicial review? Was the power of the FCC circumscribed in the context of the judicial review of migration decisions "because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution"? If the relief sought is "hopeless, inutile and hypothetical", does it mean that the court in which it is sought lacks jurisdiction to grant the relief?
Costs awarded after judicial review proceedings became moot by visa grant?
Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?
Extensive reference to health in one part of reasons indicative of its consideration in...
Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?
Correct answer indicative of innocent mistake in past answer?
Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?
HZCP distinguished?
Federal Court. If a conviction and sentence was sufficient to engage the Tribunal's jurisdiction for the purposes of s 501CA(4)(a)(i) of the Migration Act 1958 (Cth) and other convictions and sentences were not needed to engage that jurisdiction, could the Tribunal go behind those other convictions and sentences insofar as they had a bearing on s 501CA(4)(a)(ii)?
Does Viane detract from Omar?
Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?
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"?