Can AAT remit matter if it is impossible to be satisfied of several relevant matters?

The first respondent’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), after which a delegate of the applicant (Minister) refused to revoke the cancellation under s 501CA(4) of the Act. The first respondent then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision. As the Tribunal found that the first respondent did not pass the character test, the question for it, under s 501CA(4)(b)(ii), was whether there was “another reason” to revoke the cancellation. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) gave the Tribunal the power to make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

In its decision record, the Tribunal stated that it was “not possible at this time to be satisfied about several relevant matters” and therefore ordered that the cancellation decision be set aside and that the matter remitted to the Minister’s Department for reconsideration.

The Minister applied to the Federal Court (FCA) for judicial review, on the following grounds:

“(1)    the Tribunal misconstrued its powers under s 43(1)(c)(ii) of the AAT Act and s 501CA(4) of the Migration Act in failing to consider whether there was “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii) on the basis that it was “not possible at this time to be satisfied about several relevant matters”; and

(2)    the Tribunal erred in exercising its power under s 43(1)(c)(ii) of the AAT Act in that it mistakenly assumed that the Minister or his Department was required to obtain additional information that might assist [the first respondent’s] case.”

Some of the questions to the FCA were as follows:

Question 1: It was for the first respondent (i.e. the former visa holder) to put before the Tribunal any representations he wished the Tribunal to consider for the purpose of s 501CA(4)(b)(ii)?

Question 2: Does the answer to Question 1 depend on whether or not the former visa holder is represented?

Question 3: Can it be said that the Tribunal would have to be satisfied that there was a reason to revoke it in accordance with s 501CA(4)(b) in order to set aside the original decision and that, in order to reach this state of satisfaction, the Tribunal would have to address the relevant considerations prescribed by Direction 90 and weigh them?

Question 4: Can the power in s 43(1)(c)(ii) of the AAT Act only be exercised where, to give effect to the Tribunal’s conclusions, it is appropriate to set aside the decision under review but the Tribunal is unable to make a decision in substitution for the decision set aside?

Question 5: Did the impossibility of being satisfied about relevant matters entitle the Tribunal to not weigh the factors in Direction 90 in the balance and to remit matter for reconsideration?

Question 6: Did the Minister or his Department have a duty to obtain information that might benefit the first respondent’s case?

Question 7: Can it be said that, while it will be necessary in some cases for a judicial review applicant to establish that an error is material before it can be considered jurisdictional, there are doubts that the Minister was required to do this here?

Question 8: If the Minister bore the onus of establishing the materiality of any error, was this burden onerous?

The FCA answered those questions as follows: