Federal Court (Full Court): In considering a visa application, the Minister may get any information that he/she considers relevant. If the Minister gets such information, he/she must have regard to that information in deciding whether to grant a visa (s 56). The question to the 5 judges was whether, after getting about 800 pages of materials submitted by a non-citizen, the Minister was required to have regard to all of the relevant information.
Summary and discussion
The Respondent (non-citizen) made an application for a partner visa. The Appellant (Minister) then sent her a notice informing her that the Minister intended to consider whether there were grounds under s 501(1) of the Migration Act 1958 (character provisions) to refuse that application. The notice also invited the Respondent to comment or provide information on whether she passed the character test and whether the Minister should exercise his discretion to refuse the visa application.
In her response to that invitation, the Respondent submitted about 800 pages of material. Among that material was a letter from a psychiatrist, which essentially stated that the psychiatrist had consulted the Respondent for almost 4 years during which "there has been no indication that [the Respondent] is a risk to the community".
The Minister refused to grant the Respondent the visa under s 501(1) and provided a statement of reasons pursuant to s 501G. In essence, the Minister formed the view that the Respondent represented an unacceptable level of risk to the Australian community and thus exercised his discretion against the Respondent. However, that statement of reasons did not expressly mention the psychiatrist letter.
The Respondent applied to the Federal Court (FCA) for judicial review of the Minister's decision. A single judge of the FCA quashed the Minister's decision, who then appealed to the Full Court of the FCA (FCAFC). The FCAFC was comprised of 5 judges.
The question to the FCAFC was whether the Minister was required to consider all information provided in response to the invitation to comment (about 800 pages) or whether the Minister was only required to consider the submitted material "as a whole".
By a 3:2 majority, the FCAFC held as follows...
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