Federal Court. Can it be said that, "by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation)"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In assessing s 501CA(4) of the Migration Act 1958 (Cth), if the Tribunal erroneously finds that detention is indefinite, is the error nevertheless immaterial to the outcome, in that "the Applicant would not have had the benefit of a finding that weighed heavily in his favour and so any error could not be seen to be material on the basis that it deprived the Applicant of a realistic chance of a more favourable outcome"?
Question 2: In assessing s 501CA(4), if the Tribunal erroneously finds that detention is indefinite, is the error nevertheless immaterial to the outcome in that, even though the Government eventually imposed strict measures on non-citizens released following the NZYQ decision and created a criminal offence for failure to comply with such measures, those strict measures and attendant offending could not have been pre-empted by the Tribunal?
Question 3: Should the Court reject the argument that any error would not be jurisdictional as any error would, in substance, have been a factual error in forecasting the practical consequences of an adverse decision, as the Tribunal was considering the legal consequences of the decision not to revoke the cancellation of the Applicant’s visa?
Question 4: Can it be said that, "by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation)"?
Question 5: Is it "the task of an administrative decision-maker to embark on enquiries that may expose a constitutional limitation resulting in the non-application of the Act (or specific provisions of it)"?
Question 6: If the answer to Question 5 is 'no', does it follow that "the Tribunal can in all circumstances, or must always, proceed on the basis that ss 186(1) and 196(1) of the Act will necessarily apply without s 3A of the Act being engaged to limit their application"?
Question 7: Did the High Court in Ismail require the repetitious weighing of overlapping considerations?
The FCA answered those questions as follows: