Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In order for 'information' to enliven s 359A(1) of the Migration Act 1958 (Cth), is it " necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims were to be understood as the criteria for the visa being sought"?
Question 2: How does one determine whether a piece of evidence involved in its terms an undermining of an applicant's claim that they satisfied the relevant criterion?
Question 3: Paragraph s 359A(1)(a) required the Tribunal "give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Did s 359A(1) require the Tribunal "give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, [subject to any further submissions,] for affirming the decision that is under review"?
Question 4: At what point in time is s 359A(1)(a) enlivened?
Question 5: At what point in time must the opinion is s 359A(1)(a) be held?
Question 6: May High Court Justices be subject to proceedings under s 75(v) of the Constitution?
Question 7: Does s 60(1) of the AAT Act confer on Tribunal members an immunity from suit under s 75(v) of the Constitution?
Question 8: If the answer to Question 7 is "no", does s 15A of the Acts Interpretation Act 1901 (Cth) therefore require, if possible, s 60(1) to be read down so as not to immunise members of the Tribunal from proceedings under s 75(v)?
Question 9: Subsection 129(1) of the Evidence Act 1995 (Cth) provides as follows: "Evidence of the reasons for a decision made by a [Tribunal member] ... or the deliberations of a person so acting in relation to such a decision, must not be given by the person". Does s 129(1) erect an immunity from compellability as s 16(2) does?
Question 10: If the answer to Question 9 is "yes", does it follow that the the Tribunal member would be prevented from giving evidence about their reasons for decision or their deliberations?
Question 11: If the answer to Question 10 is "yes" and leave is obtained under s 16(2) of the Evidence Act to compel a Tribunal member to give evidence, can a party administer an interrogatory to that member about their process of reasoning in a review application and, if necessary, obtain discovery?
Question 12: If the answer to Question 11 is "yes", can it be said that, as "s 359A explicitly makes it an issue of fact as to if and when the Tribunal member formed a particular mental state, it follows that the court may grant leave to administer an interrogatory to the Tribunal to ascertain" whether and when the member formed the state of mind referred to in s 359A(1)(a)?
Question 13: If the answer to Question 12 is "yes", but leave to interrogate the Tribunal member is not sought, does it remains possible, with a grant of leave under s 16(2), to subpoena the Tribunal member to testify?
Question 14: In the context of assessing for the purposes of cl 858.212(2) of Sch 2 of the Migration Regulations 1994 (Cth) whether an artist has the requisite "internationally recognised record of exceptional and outstanding achievement", can the Tribunal rely on the following generalisations, so long as it does not treat them as strict requirements for the satisfaction of the criterion: "(1) Lead roles would be assigned to persons who have an international record of exceptional and outstanding achievement if such persons were available to play the role; (2) Persons who have an internationally recognised record of exceptional achievement would be performing in larger venues thanthose in which the Appellant performed, and would be in productions that had longer runs than the shows that the Appellant had performed in; and (3) Persons who have an internationally recognised record of exceptional and outstanding achievement would not have to audition for a role or, if he or she were to have auditioned, the producers of the musical would at least have been aware of the person’s record of achievement"?
Question 15: Should the evidence given by referees in favour of the Appellant be treated by the Tribunal as determinative of satisfaction of cl 858.212(2)?
Question 16: Where the criteria in question are open-textured (as opposed to objective), can it be said that the obligation to give reasons for the decision to refuse to grant a visa will rarely, if ever, be satisfied by a mere assertion that the criteria have not been satisfied?
The FCA answered those questions as follows:
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