Federal Court (Full Court). In re-exercising the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Following remittal by the FCA to the IAA, was the Secretary required to re-perform the duty in s 473CB the Migration Act 1958 (Cth)?
Question 2: Is the making of a written statement under s 473EA(1) sufficient to engage s 473EA(4), even if the decision to which the written statement relates, or which the written statement is deemed by s 473EA(2)(a) to constitute, is affected by jurisdictional error?
Question 3: Following remittal by the FCA to the IAA, was the Minister required to re-perform the duty in s 473CA?
Question 4: Following remittal by the FCA to the IAA, can it be said that the “occasion requires” (within the meaning of s 33(1) of the Acts Interpretation Act 1901 (Cth)) the Minister to re-perform the duty in s 473CA?
Question 5: If the answer to Question 4 is 'yes', is that the case only because a Court set aside the decision resulting from an earlier referral to the IAA?
Question 6: Following remittal by the FCA to the IAA, can it be said that the “occasion requires” re-performance of the duty in s 473CB?
Question 7: If the answer to question 6 is 'yes', is that because "a court has quashed the Authority’s decision for jurisdictional error and remitted the matter to the Authority to perform the function under s 473CC(1) of reviewing the decision earlier referred to it by the Minister under s 473CA and the Authority must have the “review material” before it to perform its review function"?
Question 8: In re-exercising the duty under s 473CB(1)(c), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?
Question 9: Is the word “referred” in s 473CB(1)(c) to be construed as including a reference to a remittal of a matter to the IAA by a Court?
The FCAFC answered those questions as follows: