Federal Court (Full Court). Section 501(5) provided that the power in s 501(3) of the Migration Act 1958 (Cth) could only be exercised by the Minister personally. Can it be said that s 501(5) allows a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but does not allow the decision-maker to determine not to consider information which the affected person provided prior to the decision being made?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Section 501(5) provided that the power in s 501(3) of the Migration Act 1958 (Cth) could only be exercised by the Minister personally. Can it be said that s 501(5) allows a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but does not allow the decision-maker to determine not to consider information which the affected person provided prior to the decision being made?
Question 2: If the answer to Question 1 is 'no', does it necessarily follow, "as a matter of logic, that s 501(5) contemplates or envisages that the Minister may proceed on the basis of information which is not up to date"?
Question 3: Must the power under s 501(3) be exercised reasonably?
Question 4: Must the Minister engage in an active intellectual process in assessing s 501(3)?
Question 5: Can it be said that, "where the obligation to give notification of a decision is more confined (such as that imposed under s 501C(3) [in relation to s 501(3)]), the Court should, in my opinion, proceed with more caution before drawing inferences adverse to the Minister, whether from an absence of content, or from the manner of expression, or from the structure and layout of the document in question, unless it is evident in the particular case that the Minister did indeed intend to furnish an affected person with a comprehensive statement of reasons independently of any statutory obligation to do so"?
Question 6: If the answer to Question 1 is 'no', can it nevertheless be said that it was legally unreasonable for the Minister to consider outdated information?
Question 7: If a particular matter is a mandatory relevant consideration, does it follow that every circumstance which bears on that matter is itself such a mandatory relevant consideration?
Question 8: Does a disregard for law and order refer only to a breach of the criminal law?
Question 9: Can it be said that "the existence of evidence that pointed to the mending of relationships and the taking of steps to receive treatment for some of his issues did not mean that there was “no evidence” to find that such issues appeared unresolved"?
Question 10: The Minister having chosen to make findings as to circumstances presently subsisting at the time the decision was made, was it legally unreasonable for the Minister to then not consider the new material provided by the Appellant?
The FCAFC answered those questions as follows: