Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?
The Tribunal was reviewing a decision of a delegate to refuse to grant the Applicant a visa under s 501 of the Migration Act 1958 (Cth). The Federal Court (FCA) said as follows:
56 The applicant submits that the Tribunal erred because at Reasons [5] it referred to the application to the Tribunal as seeking a review of a decision not to revoke the cancellation of the applicant’s visa under s 501CA and not the refusal of an application for a Permanent Visa. The applicant refers to the same error in the headings above Reasons [63] and [179]. It also refers to continued references to revocation of the cancellation of the applicant’s visa, throughout its Reasons at [67], [101], [102], [129], [154], [173], [178] and [182].
57 The applicant submits that the Tribunal defined the structure of its reasoning by reference to the language of s 501CA as evidenced by the numerous references to revocation of cancellation of a visa. The applicant concedes, quite properly, that there are also numerous references to the refusal of a visa.
Question 1: Can it be said that "no reason why the evaluative process to be adopted by the decision-maker when considering the requirements of Direction 90 should be any different for the purposes of s 501, than for s 501CA"?
Question 2: If the answer to Question 1 is 'yes', is there nevertheless a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii), as the latter involves the question of whether there was "another reason" why a visa cancellation should be revoked?
Question 3: If the answer to Question 2 is 'no', can it nonetheless be said that the Tribunal made no error, as it carried out the evaluative exercise required by Direction 90?
Question 4: If the Tribunal made an error, was the error material?
The FCA answered those questions as follows: