Federal Court. Did the Tribunal err by assuming that its task was a ‘re-exercise’ of a general discretion having regard to the considerations in Direction 79? If so, but the Tribunal nevertheless engages in a balancing exercise of the factors set out in Direction 79, might the error be immaterial, as such a balancing exercise is, in substance, the same as the exercise involved in the exercise of a discretion?
The Tribunal, which was tasked to review a decision of a delegate made under s 501CA(4) of the Migration Act 1958 (Cth), said as follows at [4] of its reasons:
My task is to re-exercise the delegate’s discretion afresh. Hearing the matter on the evidence adduced before me, I must decide whether to set aside the decision under review or affirm it. I have conducted what is known as a de novo hearing of the merits. This type of hearing implies that in re-exercising the discretion afresh, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if this is the correct or preferable decision on the evidence before me. Equally, I may affirm the decision if that is [the] correct or preferable decision on the evidence before me notwithstanding the presence of an error in the delegate’s reasons
The Tribunal affirmed the delegate's decision, after which the Applicant applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.
Before the FCA, the parties agreed that s 501CA(4) did not give the Tribunal a residual discretion, despite the use of the term 'may' in the provision's chapeau and the fact that Part C of Direction 79 was directly addressed to "the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa".
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did the Tribunal err by assuming that its task was a ‘re-exercise’ of a general discretion having regard to the considerations in Direction 79?
Question 2: If the answer to Question 1 is 'yes', can it be said that if the Tribunal nevertheless engages in a balancing exercise of the factors set out in Direction 79, the error might be immaterial, on the basis that such a balancing exercise is, in substance, the same as the exercise involved in the exercise of a discretion?
The FCA answered those questions as follows: