Do model litigant rules constrain AAT’s powers?
Federal Court (Full Court). Is the Minister's compliance with the model litigant obligations a constraint on the exercise by the Tribunal of its powers? Can a change to a foreshadowed hearing procedure "give rise to procedural unfairness where the affected person does not have the chance to object to the change"?
Criterion 5001 a mandatory relevant consideration?
Federal Court. In the context of cancellation under s 501(3) of the Migration Act 1958 (Cth), was the consequence brought about by cl 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) a mandatory relevant consideration, whether or not the Applicant made claims bearing on the latter provision?
AAT to give reasons on why to affirm, instead of dismissing, and vice-versa?
Federal Court. Can it be said that, "if an applicant fails to appear at a scheduled hearing, the Tribunal has three options: (i) to proceed to make a decision on the review (s 426A(1A)(a)); (ii) to dismiss the application “without any further consideration of the application or information before the Tribunal” (s 426A(1A)(b)); or (iii) to adjourn the review and reschedule the hearing (ss 426A(2) and 427(1)(b))"? If so, must its decision nevertheless have an evident and intelligible justification?
“A multifactorial evaluative decision”
Federal Court (Federal Court). Once an important underpinning of the decision in relation to several elements is fundamentally altered, is it possible to have confidence in what the outcome would have been?
Duty in s 473CB(1)(c) to be re-exercised based on new information after remittal?
Federal Court (Full Court). In re-exercising the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?
Interlocutory injunction in the context of s 48B
Federal Court. Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention? Can it be said that, although any potential harm to the applicant if he is removed is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?
Functus officio and estoppel explained
High Court. Does functus officio address the capacity, or authority, to adjudicate a matter, whereas estoppel addresses the capacity of the litigants to litigate a matter?
Standard of appellate review: “correctness” or House v King?
High Court. In hearing an interlocutory appeal concerning the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), was the Court of Appeal required to apply the principles in House v The King applicable to the review of discretionary decisions or the "correctness" standard?
Incarceration costs an irrelevant consideration?
Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), can it be said that, in "taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration"?
Costs to follow practicable outcome, although proceedings became otiose?
Federal Court. As the decision that the applicant sought to compel by mandamus was made favourably to him, with the result that he obtained the practical outcome he pursued, should he be awarded costs? If so, should those costs be offset by costs which the applicant was awarded to pay in a previous court proceeding?