Failure to consider matter which only arose from findings?

Federal Court (Full Court). Can it be said in the context of s 501CA(4) that "there is no foundation for the submission that [the administrative decision-maker] erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made"?

In Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137, Logan J (Charlesworth and Thomas JJ agreeing) at [48] approved the following passage from the reasons of the primary judge (Derrington J):

In circumstances where the Minister has an unfettered discretion to take into account whatever matters he considers relevant to the exercise of the discretion, there is no foundation for the submission that he erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows

Question 1: Does the above passage apply to the discretion under s 501CA(4) of the Migration Act 1958 (Cth)?

Question 2: If the answer to Question 1 is 'yes', can it nevertheless be said that "the fact that a decision-maker made a finding upon a particular matter might be relevant to the Court’s determination of whether the matter clearly arose on the material as a reason advanced for revocation of the cancellation decision"?

The FCAFC 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:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

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.

Previous articleXJLR extended?
Next articleDoes family violence include belittling, intimidating or frightening conduct?