Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal denied the Appellant procedural fairness by finding that the appellant failed the character test on different grounds, namely ss 501(6)(c), (d)(i) and (d)(ii), without giving him any notice that it might do so. Was the error material, even though he failed the character test because of s 501(6)(a)?
In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Appellant had failed the character test prescribed in s 501(6)(a) because because he had a “substantial criminal record”, as defined in s 501(7).
On review, the Tribunal had to consider two issues:
(a) whether the appellant passed the character test as defined by s 501; or
(b) if not, whether there was "another reason" why the original decision should be revoked.
The Tribunal denied the Appellant procedural fairness by finding that the appellant failed the character test on different grounds, namely ss 501(6)(c), (d)(i) and (d)(ii), without giving him any notice that it might do so.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In assessing whether a realistic possibility of a different outcome existed, “the inquiry that is posited is ‘backward-looking’ by reference to ‘the decision that was made and, depending on the nature of the error, how that decision was made’”: LPDT in the High Court at [10]. Is it the case that, "to say that the inquiry is backward-looking is to contrast it with the prospective inquiry required in connection with the exercise of the Court’s residual discretion to deny prerogative relief"?
Question 2: Is it "inappropriate to treat any aspect of the Tribunal’s actual reasons, or reasoning process, as necessarily fixed for the purpose of the counterfactual analysis" involved in the assessment of the materiality of an error?
Question 3: Can it be said that "a defect in procedure, if remedied, is likely to have altered what the decision-maker was required to consider"?
Question 4: Was there was a realistic possibility that the Tribunal might have reasoned differently under s 501CA(4)(b)(ii) as to whether there was "another reason", if the appellant had been afforded procedural fairness, even if the Tribunal reasoned independently in relation to both issues (i.e. the character and the "another reason" issue)?
Question 5: Is it the case that, "to say that the Tribunal did not rely on findings made in relation to the “character test” issue in its determination of the “another reason” issue, does not mean that its decision-making in relation to the two issues was independent"?
The FCAFC answered those questions as follows: