Federal Court. AAT set refusal aside, finding Applicant met s 36(2)(aa). On remittal, in considering exercise of discretion under s 501(1), Minister "accepted" AAT had found s 36(2)(aa) was satisfied and "noted" Applicant's submission to Minister relating non-refoulement obligations. Can it be said that Minister's acceptance that the AAT had found that s 36(2)(aa) was met should not be viewed as acceptance by him of substratum of AAT's finding? Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to exercise his discretion? For the purposes of discretion under s 501(1), is Minister entitled to disagree with or adopt AAT's findings?
The questions to the Federal Court (FCA) were as follows:
Question 1: Mortimer J, with whom Moshinsky J agreed, cautioned in Splendido that a consequence of the Minister's failure to provide the FCAFC with a copy of the Department's Submission relied on by the Minister in making a decision under s 501(3A) of the Migration Act 1958 (Cth) was the need for the FCAFC to be careful about drawing an inference which may be incomplete. Does the same caution apply to decisions under s 501(1)?
Question 2: Can it be said that, although a statement of reasons is not to be read with an eye finely attuned to the detection of error, that principle should not be overstated?
Question 3: Can it be said that the Minister's acceptance that the AAT had found that s 36(2)(aa) of the Migration Act 1958 (Cth) was met should not be viewed as acceptance by him of the substratum of the AAT's finding?
Question 4: Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to exercise his discretionary power under s 501(1)?
Question 5: If the answer to questions 1 and 2 is "yes", can it be said that the Minister's failure to consider the Applicant's non-refoulement claims was all the more regrettable in circumstances where those claims had been accepted by the AAT?
Question 6: For the purposes of the exercise of the discretion under s 501(1), is Minister entitled to disagree with findings of the AAT?
Question 7: For the purposes of the exercise of the discretion under s 501(1), is Minister entitled to adopt the findings of the AAT?
The FCA answered those questions as follows: