Federal Court. In order for an error (or errors) in the form of legal unreasonableness in a decision-making process to be labelled "jurisdictional", is it necessary for the materiality of the error to be established as a separate, additional element? Does Makasa apply to s 501(1)? In exercising the power under s 501A(2) to override a decision of the Tribunal, can the Minister rely on matters that were known to him at the time of the Tribunal hearing but not put by him (or on his behalf) to the Tribunal?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: The Minister considered pursuant to s 501A of the Migration Act 1958 (Cth): whether there was "a risk that the person would engage in criminal conduct in Australia" (s 501(6)(d)(i)); and, in relation to the national interest, the potential for the Australian community to be harmed by the continued presence in Australia of the applicant. Can it be said that "a factual error by the Minister that is material to the Minister’s consideration of those identified matters would amount to jurisdictional error"?
Question 2: Can separate errors made by the Minister, each of which is not in itself sufficient to betray a process of reasoning that is legally unreasonable, do so in the aggregate?
Question 3: In order for an error (or errors) in the form of legal unreasonableness in a decision-making process to be labelled "jurisdictional", is it necessary for the materiality of the error to be established as a separate, additional element?
Question 4: Can it be said that "factual matters essential to the making of a finding by a decision-maker, can be reviewed on the basis that the reasoning which led to the decision was irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect"?
Question 5: "Makasa decided that once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, a power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel a visa". Does Makasa apply to s 501(1)?
Question 6: Is there anything "in s 501A to suggest that an “original decision” that is subject to be override under the section is to be treated in a procedural or adjectival sense any differently if it is a decision of a delegate as opposed to a decision of the Tribunal"?
Question 7: In exercising the power under s 501A(2) to override a decision of the Tribunal, can the Minister rely on matters that were known to him at the time of the Tribunal hearing but not put by him (or on his behalf) to the Tribunal?
The FCA answered those questions as follows: