Federal Court. In making a decision under s 501BA of the Migration Act 1958 (Cth) to set aside a Tribunal decision, can it be said that the Tribunal's reasons could be considered by the Minister, although they are not a mandatory consideration?
The Federal Court (FCA) said as follows:
10 On 30 May 2024, the Tribunal made a decision setting aside the decision of the Minister’s delegate under s 501CA and substituting a decision to revoke the cancellation decision. Importantly, the Tribunal did not publish its reasons for making its decision on 30 May 2024, but indicated that it would, “give written reasons for this decision within a reasonable time of the decision”.
11 On 4 June 2024, the Minister made his decision under s 501BA of the Migration Act to set aside the Tribunal’s decision and cancel the applicant’s visa. The Tribunal had not published its reasons for its decision by that time. The Minister recorded in his statement of reasons at [6] that:
…[T]he AAT is yet to publish its reasons for decision. However I have had regard to the closing written submissions prepared by the parties which address the evidence that was adduced before the AAT. Further, as a consequence of the AAT’s decision, [the applicant’s visa] was reinstated.
12 On 13 June 2024, the Tribunal published its reasons for its decision of 30 May 2024.
Some of the questions to the FCA were as follows:
Question 1: Was the Tribunal bound by s 43(2) of the AAT Act to provide its reasons within a reasonable time?
Question 2: In making a decision under s 501BA of the Migration Act 1958 (Cth) to set aside a Tribunal decision, can it be said that the Tribunal's reasons could be considered by the Minister, although they are not a mandatory consideration?
Question 3: Can it be said that "the Tribunal might in any case choose to make a decision to revoke the cancellation decision directly after the hearing (for example, so that the person can be immediately released from immigration detention) and provide its reasons later"?
Question 4: Does 501BA envisage that the Minister may determine that the national interest requires urgent cancellation of a visa that has been restored?
Question 5: Is legal unreasonableness to be judged at the time the power is exercised or should have been exercised?
The FCA answered those questions as follows: