Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?
The Applicant relied on 2 grounds of review as follows:
1. In light of the findings of the [Administrative Appeals] Tribunal (which are treated as findings of the Minister pursuant to s 46(6) of the Administrative Appeals Tribunal act 1975 (Cth) (AAT Act) and/or the direction of the Tribunal made pursuant to s 43(1)1 of the AAT Act, the Minister was obliged to conclude that the Applicant was not a danger and/or risk to the Australian community. In failing to so find, the Minister committed jurisdictional error.
2. The Minister failed to give proper, genuine and realistic consideration to the fact that the [Administrative Appeals] Tribunal had determined that the Applicant was not a danger and/or risk to the Australian community, and/or acted in a legally unreasonable way in failing to act consistently with and/or considering the Tribunal’s determination and/or failed to properly take into account a mandatory relevant consideration, and therefore committed jurisdictional error.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: The Minister argued to the FCA that "the Court should find that the Tribunal had determined the Applicant’s review by applying a legally unsound, too strict test, with respect to what “danger” meant for the purposes of s 36(1C) and in consequence the Minister had been entitled to determine the remitted application without regard to the Tribunal’s reasons". Was it "inherently improbable that the Tribunal determined the proceeding then before it by applying a test that was more disadvantageous to the Applicant than that submitted for by counsel then representing the Minister"?
Question 2: Was there any "binding authority requiring the conclusion that the Tribunal did, impermissibly and unlawfully, apply a legally unsound test" by following DP Tamberlin’s reasoning in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434; AATA 512?
Question 3: Was it "open to the Minister to assert the right to treat as a nullity the decision of the Tribunal because of" the possibility that the Tribunal's reasoning concerning the interpretation of s 36(1C) would later on be declared by a court to be erroneous?
Question 4: Can it be said that an application by the Minister to the FCA for judicial review of the Tribunal's decision was not available, with the result that "the Minister was justified unilaterally to proceed on his own assessment of the invalidity of the Tribunal’s reasoning"?
Question 5: Was there anything "in the Minister’s reasons to suggest that when he made his decision he had any apprehension at all that the Tribunal had erred in" its interpretation of s 36(1C), with the result that "the Minister was justified unilaterally to proceed on his own assessment of the invalidity of the Tribunal’s reasoning"?
Question 6: Can it be said that "the Minister, because his Delegate had originally dealt with the application simply as one made pursuant to s 36(1C), perforce must have forsaken the alternative provided for in s 501"?
Question 7: In light of s 43(6) of the AAT Act, can it be said that "in bringing finality to an issue in the Applicant’s remitted application – that is whether the criteria in s 36(1C)(b) had been met – the Minister became legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501"?
Question 8: Can it be said that, "in the exercise of his discretionary decision making pursuant to s 501 the Minister was obliged to have regard to the representations the Applicant had made to him in response to the invitation he had extended"?
Question 9: "The central and critical integer of the representations that the Applicant made to the Minister was that he had learnt by his mistakes and had matured such that he was a changed man and no longer the person who had committed the offences he had earlier been convicted of". "In that regard the Tribunal’s decision and reasoning was not only a critical component of the representations that the Applicant made to the Minister but also the most recent independently sourced material available to the Minister referrable to that subject matter". In those circumstances, can it be said that "the Tribunal’s decision and its reasoning was “just another piece of material before him” that the Minister was entitled to place such weight on as he thought fit"?
The FCA answered those questions as follows:
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