Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the presumption that an Act must be read as a whole, and that words and phrases are used consistently throughout, readily rebuttable if the context compels a different construction?
Question 2: Is the presumption that an Act must be read as a whole, and that words and phrases are used consistently throughout, less strong in respect of words within large and frequently amended statutes?
Question 3: Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community". Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"?
Question 4: If a person has been convicted by a final judgment of a particularly serious crime, is that person necessarily a danger to the Australian community?
Question 5: The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the Amending Act) came into force on 25 May 2021 and added s 36A to the Migration Act 1958 (Cth), requiring the Minister to make a record of whether a protection visa applicant satisfies the criteria in ss 36(2)(a) or (aa) even if that applicant does not satisfy s 36(1C). Item 4(1) of Schedule 1 to the Amending Act read as follows: "Section 36A of the Migration Act 1958, other than paragraphs 36A(2)(a), (b) and (c), applies in relation to applications for visas made but not decided before this Schedule commences." The delegate made a decision before 25 May 2021 and the Tribunal made its decision on review after that date. Was the Applicant's protection visa "decided" before 25 May 2021, with the result that s 36A did not apply to this decision of the Tribunal?
Question 6: Can it be said that, "although the Tribunal may exercise all the powers and discretions conferred upon the original decision-maker, its task in considering a review application is not, in itself, an exercise of a power to grant or refuse to grant a visa"?
Question 7: Can it be said that, "where a delegate makes a decision by reference to s 36(2C)(b) of the Migration Act, the Act contemplates that the General Division of the Tribunal will only review that aspect of the decision"?
Question 8: Can it be said that "a decision-maker’s task to consider and make a record of the matters specified in s 36A(1) is not the exercise of a separate or ancillary “power”" and that, "at its highest, if it applied, it would have been a procedural step accompanying the Tribunal’s exercise of power under s 43 of the Administrative Appeals Tribunal Act to affirm, vary, set aside and/or remit the matter under review"?
The FCA answered those questions as follows:
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