Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard?
Question 2: 9 days before making her decision, the delegate "extracted" and "viewed" the 2 interviews under the Department's TRIM system. If the answer to Question 1 is "yes", can it be said that there was no basis for the delegate to have extracted and viewed the interviews other than to consider the interviews and whether they were of sufficient importance and relevance to refer to in her decision?
Question 3: Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?
Question 4: Can it be said that, "where there is a lapse of time between when the document or information was before the Minister’s delegate and when the delegate made the decision under s 65, whether the time requirement is satisfied is a question of fact and degree and the Court will consider whether the first event is too remote from the second event to satisfy the timing requirement"?
If the answer to Question 4 is "yes":
Question 5: Was the difference of 9 days between extracting and viewing the interviews and making the decision such a lengthy period to suggest that the timing requirement was not met (i.e. that the events are too remove to each other)?
Question 6: In determining whether 9 days was a lengthy period, is the extent of consideration part of the time requirement? In other words, even if 9 days were to not considered lengthy in normal circumstances, can it be said those 9 days were lengthy in the circumstances of this case if it is established that the delegate's consideration of the interviews was only very fleeting?
The FCA answered those questions as follows: