Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The appeal concerns the decision of the Administrative Appeals Tribunal (AAT) affirming the delegate's decision not to revoke the mandatory visa cancellation of the appellant, Salafai Tauapai Au, under the Migration Act 1958 (Cth). The appeal before the court was the decision of the Federal Court dismissing the application for judicial review of the AAT decision. The central legal issue was whether the AAT erred in its interpretation of the statutory task required under section 501CA(4) of the Act, and if so, whether that error was material to the outcome of the proceedings.

The court found that the AAT had misunderstood its task, treating the matter as the exercise of a purely discretionary power to revoke or not revoke the cancellation decision. The court noted that the correct question for the AAT to ask was whether the delegate's decision that the power under s 501CA(4) was not enlivened because they were not satisfied of the existence of another reason for cancellation, was the correct or preferable one. The AAT, however, had asked itself a different question. The court concluded that the AAT's error in not addressing the correct question was material to the outcome because there was a realistic possibility of a different outcome had the correct question been asked. The court held that the AAT's error therefore affected by jurisdictional error, which required the appeal to be allowed and the matter to be remitted to the AAT for determination according to law.

The court further addressed the issue of whether there exists a residual discretion in s 501CA(4) if a decision-maker concluded there was another reason for revocation. While the court found that the appeal could be resolved without addressing this issue, it noted the inconsistency in intermediate appellate decisions and accepted that there are arguments for and against the proposition of a residual discretion. The court concluded that there is no need to resolve the issue at this stage, given that the appeal can be resolved on issues concerning the antecedent operation of s 501CA(4).

The final orders of the court were that the appeal be allowed, the orders made by the Federal Court of Australia on 14 October 2021 be set aside, and in lieu thereof, a writ of certiorari issue quashing the decision of the AAT made on 2 March 2021, a writ of mandamus issue directing the AAT to determine the appellant's application for review according to law, and the first respondent pay the appellant's costs of and incidental to the appeal.