Federal Court. Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"? Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did the use of the word "may" in s 424(1) of the Migration Act 1958 (Cth) confer a discretion on the Tribunal to get information?
Question 2: Are the Minister’s powers under s 56 to get any information that the Minister considers relevant "picked up by s 415(1) which provides that the Tribunal may exercise all the powers and discretions that are conferred on the person who made the decision, which is another source of the Tribunal’s discretionary power to make inquiries"?
Question 3: Can it be said that "the implied conditions on the duty to review that are imposed on the Tribunal include that it act within the bounds of reasonableness in considering whether to exercise any of the powers that are available to it to get any information that it considers relevant"?
Question 4: Does the "fact that it may have been reasonable for a Tribunal to make an inquiry ... mean that the failure to make an inquiry amounts to jurisdictional error"?
Question 5: Can it be said that a finding by the Tribunal "that the appellant’s migration agent was not reliable or was untruthful would be a serious finding" and that therefore, if it makes such a finding, then the Tribunal would be expected to use direct language?
Question 6: Can it be said that, if the Tribunal's "failure to inquire was unreasonable, then for there to be a jurisdictional error the failure must be material in the sense that without the failure there would have been a realistic possibility of a different outcome on the review"?
Question 7: Is non-compliance by the Tribunal with s 424A(1) necessarily material to the outcome?
Question 8: Is it "possible to conceive of cases where a tribunal complies with the procedural fairness obligations in s 424A(1), but acts unreasonably in failing to give additional information to an applicant"?
The FCA answered those questions as follows:
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