Federal Court (Full Court). Can it be said that "the discretion resides in the Tribunal under s 438(3)(b) [of the Migration Act 1958 (Cth)] insofar as there is a valid certificate, and that there is no obligation under s 424AA, s 424A or s 425 to disclose to the appellant the information nor any matter contained in the document “unless the discretion is affirmatively exercised”"?
Some of the questions to the Full Court of Federal Court (FCAFC) were as follows:
Question 1: Are the terms of s 438(3)(b), s 424AA, s 424A and s 425 relevantly equivalent, respectively, to s 376(3)(b), s 359AA, s 359A and s 360 of the Migration Act 1958 (Cth)?
Question 2: Can it be said that "the discretion resides in the Tribunal under s 438(3)(b) insofar as there is a valid certificate,and that there is no obligation under s 424AA, s 424A or s 425 to disclose to the appellant the information nor any matter contained in the document “unless the discretion is affirmatively exercised”"?
Question 3: Can it be said that "the discretion resides in the Tribunal under [s 376(3)(b)] insofar as there is a valid certificate,and that there is no obligation under [359AA, s 359A and s 360] to disclose to the appellant the information nor any matter contained in the document “unless the discretion is affirmatively exercised”"?
The FCAFC answered those questions as follows: