Federal Court (Full Court). Although referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion, did the Tribunal ask itself the correct question when it searched for "another reason" under the Direction, as the Direction itself referred to that question as involving a discretion? If not, can it nevertheless be said that "the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision"?
Derrington J said as follows:
9 Given the narrow issues on this appeal it is only necessary to refer to s 501CA(4) of the Act. It provides:
(4) The Minister may revoke the original decision [being the cancellation decision] if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
14 The terms of Direction No 79 include the following:
6. Preamble
6.1 Objectives
…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
…
PART C
13. Primary considerations – revocation requests
(1) Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(Emphasis added).
Derrington J said at [17]:
(a) At [3] the Tribunal referred to the delegate having declined to reinstate the visa in his or her discretion.
(b) At [4] the Tribunal member said, “My task is to re-exercise the delegate’s discretion afresh”. Later in that paragraph the Tribunal member indicated that the type of hearing implied the re-exercising of the discretion afresh.
(c) At [29] the Tribunal member said, “I now turn to the factors relevant to re-exercising the discretion”.
(d) After [29] the Tribunal’s reasons has the heading, “Re-exercising the discretion”.
(e) At [30] the Tribunal member referred to his earlier decision in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356 in which he identified that in applying Direction No 79 the power in question was the exercise of the discretion to revoke and that the specific circumstances mentioned must be taken into account in the exercise of the discretion when it is enlivened.
(f) At [49] the Tribunal member said, “All in all, I approach the re-exercise of the discretion on the basis that Mr Au’s risk of reoffending is moderate, that is, neither high nor low”.
(g) Immediately prior to [61] of the reasons the heading, “Weighing up the discretion”, appears.
(h) At [61] the Tribunal member stated that weighing up the discretion in that case had been particularly difficult.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Although referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion, did the Tribunal ask itself the correct question when it searched for "another reason" under the Direction, as the Direction itself referred to that question as involving a discretion?
Question 2: In determining whether a court is impermissibly reading the Tribunal's reasons with an eye keenly attuned to the perception of error, is it relevant that that the decision-maker was "a Senior Member of the Tribunal and a member of the legal profession"?
Question 3: Can it be said that the mere fact that the delegate correctly applied the statutory provisions by not referring to the test in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as involving a discretion does not generate any inference that the Tribunal also correctly applied those provisions?
Question 4: If the answer to Question 1 is 'no', can it nevertheless be said that "the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision"?
Question 5: Does the materiality principle apply to jurisdictional fact error?
Question 6: If the answer to Question 5 is 'yes', can it be "assumed that the materiality of an error in the exercise of power which is sufficient to result in a jurisdictional error, is generally the same level of materiality which will vitiate an improperly formed state of satisfaction"?
Question 7: If the answer to Question 5 is 'yes', was the Tribunal's error necessarily material in that, in the absence of the error, "the Tribunal would not have determined that the correct or preferable decision was that the discretion should be exercised not to revoke the cancellation decision"?
Question 8: Does s 501CA(4) confer on the decision-maker a residual discretion?
The FCAFC answered those questions as follows: