Minister bound by AAT’s factual findings?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?

The Federal Court (FCA) summarised the case as follows:

3    In March 2018, the applicant applied for a protection visa. A delegate of the Minister refused the application on the basis that the applicant was “a danger to the Australian community” within the meaning of s 36(1C) of the Act.

4    The applicant sought merits review of the decision of the delegate in February 2020. The Administrative Appeals Tribunal set aside the decision of the delegate. The Tribunal found that the applicant did not represent “a danger to the Australian community” under s 36(1C) of Act and remitted the application to the Minister with a direction to that effect.

5    In May 2021, the Minister refused to grant the applicant a protection visa under s 501(1) of the Act because the Minister considered that, inter alia, there was an ongoing risk that the applicant wouldoffend and in doing so may cause harm to members of the Australian community.

6    In June 2021, the applicant filed the application before this Court for judicial review of the Minister’s decision under s 476A of the Act. In support of the application the applicant relied on three grounds of review.

7    First, the applicant contended that it was not open to the Minister to find that the applicant was a risk to the Australian community in circumstances where the Tribunal had previously found that the applicant was not “a danger to the Australian community” within the meaning of s 36(1C) of the Act ...

Question 1: May the operation of ss 36 and 501 "be characterised as part of a single process in which the visa application is either granted or refused under s 65" of the Migration Act 1958 (Cth)?

Question 2: Is it "necessary for all of the tasks listed by s 65(1) to be performed for an application to be refused"?

Question 3: Can it be said that "some level of factual consistency is required by the scheme of the Act across the different intermediate decisions required to be made in the process under which an ultimate decision to grant or refuse a visa is made under s 65(1)"?

Question 4: If the answer to Question 3 is 'yes', can it be said that "inconsistency on critical facts is more likely to undermine the decisional process than inconsistency on subsidiary facts"?

Question 5: Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"?

Question 6: Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?

The FCA answered those questions as follows:

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