Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine?
Question 2: Is s 91W(3) of the Migration Act 1958 (Cth) otiose?
Question 3: Does the phrase “reasonable explanation” in s 91W(2) of the Migration Act 1958 (Cth) connote not only that the explanation is rational, but also that the explanation is credible?
Question 4: Will s 91W(2) "be engaged in circumstances where the Minister seeks production of a category of documents and the applicant has a reasonable explanation for failing to produce one or more documents within that category, but does not have a reasonable explanation for failing to produce another document within that category"?
Question 5: Must the reasonableness of any failure to produce a particular document "be assessed having regard to the type of document in question and the objective likelihood of the applicant possessing the document at some point in time"?
The FCAFC answered those questions as follows: