Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did s 43(1)(c) of the AAT Act give the Tribunal the power to remit the matter to the delegate, but not for reconsideration?
Question 2: If the remittal to the Minister could be taken to be a remittal to the Minister for reconsideration, did the Tribunal make an error in the direction that it gave in that, rather than deciding the matter itself, it impermissibly imposed its view of the inevitable decision on the Minister for the Minister to make?
Question 3: Is the threshold of materiality a requirement for jurisdictional error even in the case of an error with regard to power or authority?
Question 4: Can the requirement of materiality can be applied to a discrete issue? In other words, can it be said that, regardless of what the Tribunal found in relation to whether there was "another reason" to revoke the visa cancellation, the Tribunal's error in regards to the question of whether it had power to revoke the cancellation was sufficient to render the whole of the Tribunal's decision vitiated with jurisdictional error?
Question 5: Can it be said that, "to mistakenly deny jurisdiction on one ground but to correctly deny it on another is not jurisdictional error because the overall decision to deny jurisdiction would remain the same regardless of the error"?
Question 6: Was the Tribunal’s error with regard to power, or authority, and not jurisdiction? In other words, can it be said that, to mistakenly conclude that a power is not enlivened is not a mistake as to jurisdiction?
Question 7: Can it be said that, as the Tribunal expressed an opinion that, had it had the power to assess whether there was "another reason" to revoke the cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth), it would have found that there was not another reason, the Tribunal's error regarding the deadline for making a valid revocation request was immaterial and thus not jurisdictional?
Question 8: Can it be said that "interests of [the Applicant's] children, and in particular his minor children, inevitably weigh heavily in favour of revocation"?
Question 9: In assessing the "expectations of the Australian community", was it "an error of law in the construction of the relevant clause of Direction 79 to conclude, as the Tribunal did, that the community expects a particular outcome in the particular case"?
Question 10: Is it "likely that the reasonably informed lay observer will apprehend that the member of the Tribunal might in some way be influenced by the fact that he has previously recorded an opinion on the issue and therefore be seen to have prejudged the issue"?
Question 11: If the answer to Question 10 is "yes", does justice therefore suggest that the Tribunal should be differently constituted?
Question 12: If the answer to Question 11 is "yes", does it follows that the FCA should make an order that the Tribunal be differently constituted?
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.