Implications of departure from s 501G(2) notification obligations

Federal Court: in the context of merits review of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth), can it be said that any departure by the original decision-maker from his or her notification obligations under s 501G(2)  would result in invalidity of a merits review application, "without consideration of the extent and consequences of the departure"?

The Applicant's visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) on character grounds.

The Applicant sought revocation of that cancellation, but the Minister refused to revoke the cancellation decision pursuant to s 501CA(4).

Section 501G(2) required the Minister's notice of non-revocation sent to the Applicant to be accompanied by "every document, or part of a document, that ... is in the delegate’s possession or under the delegate’s control; and was relevant to the making of the decision; and does not contain non‑disclosable information".

The Minister sent the Applicant the non-revocation notification letter accompanied by some documents, but not accompanied by a set of documents referred to as "Attachment J1".

The Applicant then applied to the Tribunal (AAT) for merits review of the non-revocation decision. Attachment J1 was not before the Tribunal when it made its decision to affirm the Minister's decision.

The Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.

The questions to the FCA were as follows:

Question 1: Was Attachment 1 relevant to the making of the Minister's non-revocation decision?

Question 2: If the answer to Question 1 is "no", are the "requirements in [s 501G(2)] such that any departure therefrom would result in invalidity, without consideration of the extent and consequences of the departure"?

The FCA answered those questions as follows:

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