“A multifactorial evaluative decision”

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Was it expedient and in the interests of justice to grant the appellant leave to rely on a new ground of judicial review not argued at first instance, in circumstances where the two grounds rely on essentially the same error and merely differ in the way in which they characterise it?

Question 2: Must the state of satisfaction required of the Minister by s 501A(2)(e) of the Migration Act 1958 (Cth) be formed on a correct understanding of the law?

Question 3: Did the Minister treat the operation of ss 189 and 196 of the Act in a way that, "if the appellant was refused a protection visa and was not granted another visa he would remain in immigration detention until such time, if it arose, that he could be removed to another country"?

Question 4: If the answer to Question 3 is 'yes', and that was the law as interpreted at the time of the Minister's decision, did the law as subsequently (and differently) interpreted apply ab initio?

Question 5: In making a decision under s 501A(2), was the Minister required to take account of the legal consequences of his decision?

Question 6: Is the reference on CBW20 to an error "on a point of sufficient significance to the ultimate decision" best understood as amounting to a finding that the errors were material in the requisite sense?

Question 7: 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?

Question 8: Can facts which occurred after an administrative decision was made shed light on that decision?

Question 9: Could the Minister be liable for for damages for unlawful imprisonment by setting aside the AAT's decision, thus keeping the appellant detained, in light of the ruling in NZYQ?

The FCAFC answered those questions as follows: