Federal Court (Full Court): Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made? Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given? Are decision-makers bound by policy?
The Appellant applied for a Class XB (refugee and humanitarian) visa, without specifying any visa subclasses, but making claims of both substantial discrimination and persecution. There were 5 subclasses within that class, namely 200, 201, 202, 203, 204.
Subclass 202 was different to the other subclasses in that it required applicants to establish "substantial discrimination" and the other subclasses required applicants to establish "persecution".
The Appellant provided 10 pages of submission, which focused mostly on the "substantial discrimination" claim. The submission was very detailed in that regard and nothing suggested the delegate made any adverse credibility findings against the Appellant.
A delegate of the Minister refused the application only 5 working days after the application was made.
Although the delegate was not, according to ss 66(2)(c) and 66(3) of the Migration Act 1958 (Cth), required to provide reasons for the decision, she did provide very brief reasons, which included the following passage:
The applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country.
The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the delegate's decision, but the FCCA dismissed that application.
The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), a Full Court (FCAFC) of which heard the appeal.
The FCAFC was unanimous in some aspects and divided 2:1 in others.
The Questions to the FCAFC were as follows:
Question 1: Although s 66 did not require the delegate to provide reasons due to ss 66(2)(c) and s 66(3), was the delegate required to do so under the common law?
Question 2: Can an error of law be demonstrated by inference from what an administrative decision maker says by way of explanation given for the decision made?
Question 3: Where a decision maker is not required to give reasons for a decision, can an inference be drawn that the decision was "attended by an error of law because of what was not said by the decision-maker"?
Question 4: Does the "absence of a statutory duty to provide reasons [support] the conclusion that a lesser standard of analysis applies to reasons in fact given?
Background: In Jabbour, a single judge of the FCA had held as follows at  (emphasis added):
It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else...
Question 5: Is Jabbour authority for the proposition that the Delegate would fall into judicially reviewable legal error by not complying with the Policy Guidelines?
Question 6: Are decision-makers under a general obligation to apply policy?
The FCA answered those questions as follows.
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