Federal Court (Full Court). "In light of the findings of the Tribunal (which are treated as findings of the Minister pursuant to s 43(6) of the [AAT Act]), and/or the direction of the Tribunal made pursuant to s 43(1) of the AAT Act", was the Minister "obliged to conclude that [the respondent] was not a danger and/or risk to the Australian community"? Should it be "implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1)"?
A delegate refused to grant the respondent a protection visa on the basis that he was a 'danger to the Australian community', pursuant to s 36(1C)(b) of the Migration Act 1958 (Cth).
On review, the Tribunal made the following decision under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act):
The reviewable decision is set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.
Following remittal, "the Minister personally refused to grant the Protection visa, because the Minister was not satisfied that the respondent passed the “character test” in s 501(6) of the Act and, on that basis, decided to exercise his discretion under s 501(1) to refuse to grant the visa". The Minister found as follows:
[51] Overall, I find that there remains an ongoing risk that [the respondent] will reoffend. Should [the respondent] engage in further criminal conduct of a similar nature, it could result in dangerous and violent conduct that could cause significant physical harm and/or psychological injury to members of the Australian community.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that, "in light of the findings of the Tribunal (which are treated as findings of the Minister pursuant to s 43(6) of the [AAT Act])], ... the Minister was obliged to conclude that [the respondent] was not a danger and/or risk to the Australian community"?
Question 2: Can it be said that, in light of the "the direction of the Tribunal made pursuant to s 43(1) of the AAT Act, the Minister was obliged to conclude that [the respondent] was not a danger and/or risk to the Australian community"?
Question 3: Should it be "implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1)"?
Question 4: As a matter of principle, is it "irrational or inconsistent to decide under s 36(1C)(b) that there are not reasonable grounds for concluding that a person is “a danger to the Australian community”, but nevertheless to reach the conclusion that the person presents a sufficient level of risk to warrant exercising the discretion under s 501(1) not to grant a visa"?
The FCAFC answered those questions as follows: