Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the discretionary power in s 109 of the Migration Act 1958 (Cth) arise if, and only if, a decision is made that there was non-compliance, pursuant to s 108(b), "in the way described in the notice" issued under s 107?
Question 2: If the answer to Question 1 is 'yes', does the first step under s 108(b) "involve a jurisdictional fact whether there was non-compliance in the way described in the notice"?
Question 3: Must the opinion or state of satisfaction under s 108(b) be reasonably and rationally formed, and based on probative material?
Question 4: Regulation 2.41(a) of the Migration Regulations 1994 (Cth) provided that, for the purposes of s 109(1)(c), the "correct information" was prescribed. Did r 2.41(a) implicitly pose the question of whether the visa would have been granted if the correct information had been supplied?
Question 5: If the answer to Question 4 is 'yes', can it be said that the question implicitly posed by r 2.41(a) "could only have been answered in the affirmative, because that is, in fact, what occurred", given that "the “correct information” is precisely what the appellant through his migration agent, and his sponsoring employer had provided to the department prior to the grant of the visa and prior to the approval of the employer nomination"?
Question 6: Is it "irrational to reason that a person who works in one industry (taxi driving) might not be interested in establishing other businesses (hairdressing) as a way to increase assets and revenue"?
Question 7: Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?
Question 8: Can it be said that, "whether an incorrect answer was deliberately or inadvertently given does not affect the question whether the precondition for cancellation in s 108, read with s 101, is made out"?
Question 9: If the answer to Question 8 is 'no', can it be said that "the question of inadvertence, or a conscious decision to provide incorrect information may however be highly relevant to the exercise of the discretion whether or not to cancel a visa, the precondition having been satisfied"?
Question 10: In the context of merits review of a decision of a delegate to cancel an RSMS (subclass 187) visa under s 109 of the Migration Act 1958 (Cth), should the scope of what tasks a particular ANZSCO occupation performs inform the decision whether an incorrect answer was given?
The FCA answered those questions as follows: