Federal Court. Despite the substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision, and that fact that both powers are to be exercised by reference to Direction 110, are those powers distinct and different in material respects?
The respondent (non-citizen) conceded that the Tribunal made an error in making a decision under s 501(1) of the Migration Act 1958 (Cth).
The FCA said:
13 The decision under review was a refusal to grant a SHEV to the first respondent under s 501(1) of the Migration Act, on the ground that he did not satisfy the delegate that he passed the character test. However, the Tribunal erroneously proceeded on the basis that the issue to be determined on review was whether there was “another reason” to revoke an original decision to cancel the first respondent’s visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act. The Tribunal’s reasons are replete with references to the wrong statutory provisions, and repeatedly frame the issues and the key findings by reference to the wrong statutory test.
Some of the questions to the FCA were as follows:
Question 1: Can it be said that, "as the first respondent conceded the Tribunal’s error at the earliest possible opportunity after having retained pro bono counsel, there is no basis on which he should be required to pay the Minister’s costs of the proceeding"?
Question 2: Can it be said that, "[i]n the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court’s specification of the error and its satisfaction that error occurred"?
Question 3: Can it be said that, "in considering whether it is appropriate to make proposed consent orders, it is not the function of the court to impede settlement between parties who are legally represented and able to understand and evaluate the desirability of agreeing to a settlement, and the approach of the Court “does not require exacting inquiry” into the basis for the proposed orders"?
Question 4: Notwithstanding the substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision, and that fact that both powers are to be exercised by reference to Direction 110, are the powers distinct and different in material respects, with the result that the Tribunal made an error?
Question 5: If the answer to Question 4 is 'yes', was that error material to the outcome, and thus jurisdictional?
The FCA answered those questions as follows: