CONSIDERATION
77 In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 the Full Court considered the nature of the AAT's review function in respect of a decision to deport a person under the s 12 of the Act as then in force. The AAT's power to review the decision was, at that time, conferred by s 25(4) and s 26(2) of the AAT Act. Smithers J said (at 77 - 78):
It might be thought that it would be open to the Administrative Appeals Tribunal not to decide for itself whether a decision made by an administrator was the right decision which ought to have been made in the circumstances but rather to satisfy itself that the decision of the administrator was one which an administrator acting reasonably might have made. But to do this would be to review the reasons for the decision rather than the decision itself. It is the actual decision which by virtue of s 25(1) and (4) of the Administrative Appeals Tribunal Act the Tribunal is authorized and required to review. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the Tribunal may not reveal this. In this connection the observations of Sheppard J in Horne v Locke [1978] 2 NSWLR 88 at 98-100 are in point. It is to permit implementation of the function of the Tribunal, as so understood, that there has been conferred upon the Tribunal extensive powers of investigation. Those powers are conferred so that the Tribunal may equip itself to make an appropriate recommendation or affirm the decision: see s 43 of the Administrative Appeals Tribunal Act and Pt XXII of the Schedule thereto.
78 To similar effect, Bowen CJ and Deane J said (at 68):
The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
79 That characterisation of the AAT's function was approved by Kiefel J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (at [140] - [142]). Her Honour said:
140 The term 'merits review' does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the 'correct or preferable decision'. 'Preferable' is apt to refer to a decision which involves discretionary considerations. A 'correct' decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.
141 The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.
142 In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
80 For the Minister it is argued that the core function of the Authority is the same as that performed by the AAT as explained in Drake and approved in Shi. The word "review", the Minister argues, bears the same meaning as it does in s 348 and s 411, being the provisions conferring review powers on the AAT. In support of that contention, the Minister calls in aid a "principle of construction" that a word used throughout an enactment is to be interpreted consistently: Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [14] (Moore J), [72] (Weinberg J). Accordingly, it is submitted, the primary judge did not err by applying the reasoning in Drake and Shi, nor by equating the jurisdiction of the Authority with that of the AAT, nor by employing the words "correct" and "preferable" to describe the decision resulting from the proper exercise of the Authority's powers.
81 The principle of construction relied upon by the Minister is more properly understood as a rebuttable presumption. In a case such as the present, the presumption is, in my view, a particularly fragile one. It should not be the starting point for determining the issue arising on the appeal. The word "review" in s 473CC of the Act is not to be construed by immediate and unqualified resort to cases in which the Courts have previously construed the same word in a different statutory context. Rather, the process of construction must begin by examining the particular context in which the provision in question is being construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). The verb "review" has a chameleon quality in that its meaning must depend on the construction of all of the provisions that prescribe what the reviewing body in question can and cannot lawfully do.
82 The Act itself expressly contemplates that the form of review to be undertaken by the Authority is a "limited form of review". The word "limited" contemplates that the form of review is limited relative to other forms of review authorised by the Act. The word does not appear in connection with the other review functions of the AAT. The relevant question of construction is whether the Authority's review function under Pt 7AA is "limited" in the particular respect contended for by the appellant.
83 Counsel for the appellant focused specifically on the limited range of material to which the Authority may have regard in the performance of its functions (ss 473CB, 473DB and 473DC), the statutory curtailment of the rules of natural justice (s 473DA) and the limitations on the Authority's dispositive powers (s 473CC(2) and reg 4.43). Those limitations, it is submitted, inhibit the Authority from ascertaining for itself the true facts bearing upon the question of whether the visa criteria are satisfied and preclude the Authority from substituting the decision under review (being the Minister's decision under s 65 of the Act to refuse to grant a protection visa) with a decision that the visa be granted. The limitation on the power to obtain new information was one that necessarily precluded the Authority from standing in the shoes of the original decision-maker and determining the question of whether the relevant visa criteria are satisfied as at the time of the Authority's own decision. I accept these aspects of the appellant's submissions. Clearly the Authority is not equipped with all of the powers of the original decision-maker and its powers in that respect are markedly more confined than those that might be exercised by the AAT in other statutory contexts.
84 The use by the primary judge of the phrase "correct and preferable conclusion" must be taken to refer to the phrase "correct and preferable decision" as used in Drake and subsequently explained and approved in Shi. The primary judge adopted the phrase as a means of equating the nature of the review function performed by the Authority with that of the AAT, albeit subject to two qualifications. The first is that the Authority was to make its decision "on the basis of the material referred to it". The second is that the Authority had "limited procedural powers".
85 In my view, it was unnecessary for the primary judge to use the phrase "correct and preferable conclusion" to describe the nature of the Authority's review function in order to determine the narrow issue arising on the application for judicial review. The reference in Drake and Shi to the making of a correct and preferable decision reflects the circumstance that the AAT has, for the purposes of its dispositive powers, all of the powers of the original decision-maker, particularly the power to make a decision to grant or refuse a visa under s 65 of the Act. The Authority does not have the same suite of powers as the AAT. It performs a review function that is sui generis. Attempts to equate the nature of its function to that of the AAT by the use of shorthand descriptions derived from the case law are, at best, unhelpful.
86 By its nature, the fast track decision referred to the Authority will be one based on the Minister's assessment that an essential criterion for the grant of a protection visa is not fulfilled: s 65 of the Act. The Refugee Criterion and the Complementary Protection Criterion are essential alternative criteria for the grant of a protection visa, but they are not the only criteria. If neither of those alternative criteria is satisfied, it would not be necessary for the Minister to consider and address in his reasons the question of whether all of the other essential criteria for the grant of the visa are met. The Act neither requires nor contemplates that the Authority be provided with material bearing on those criteria for the grant of the visa that were not considered by the Minister. The limitations on the review material is such that the Authority will be disabled, in a very practical sense, from considering or determining whether any criteria other than those considered determinative by the Minister are met. Although reg 4.43(2)(a) of the Regulations empowers the Authority to give a direction to the effect that the referred applicant must be taken to have satisfied those criteria for the grant of the visa that are specified in the direction, the range of criteria to which such a direction will refer will necessarily be limited by the subject matter to which the review material relates.
87 The Authority's obligation to "review the decision" is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative. The Authority otherwise has no power to determine that the correct and preferable decision is one granting the referred applicant a visa. Accordingly, the Authority cannot perform a "full merits review" of the s 65 decision.
88 However, it does not follow that in the performance of its review function, the Authority may not depart from findings of fact made by the Minister that bear upon the question of whether the particular criterion under consideration is met without first identifying an error affecting the Minister's findings. There is nothing in the text, context or purpose of the provisions at issue to support that construction.
89 The purposes for limiting the form of review to be undertaken by the Authority are illuminated by the explanatory memoranda (EM) accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), later enacted as the Amending Act. The EM includes the following statements:
A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.
…
As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant's country of origin that means the applicant may now engage Australia's protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia's protection obligations by the Department of Immigration and Border Protection.
…
The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.
90 As the EM makes clear, Pt 7AA is intended to advance the policy objectives of speed and expediency in the processing of protection visa applications of a particular kind. The provisions of Pt 7AA advance that objective not by providing for a form of review other than merits review on the facts and the law, but by (without being exhaustive):
(1) precluding the Authority from deciding whether the referred applicant is to be granted a visa under s 65 of the Act;
(2) expressly confining the material to which the Authority may have regard and, by implication, confining the subject matter of the review to those criteria the Minister considered determinative;
(3) limiting the involvement of the referred applicant in the review process so as to (among other things) prevent the referred applicant from relying upon claims in support of the visa application that were not advanced before the Minister.
91 It is to be acknowledged that the form of review tasked to the Authority under Pt 7AA of the Act lacks features that might be considered desirable or optimal when compared with the form of merits review that has become familiar since the introduction of the AAT Act. But it is for Parliament to decide whether or not mechanisms for external administrative review (as opposed to judicial review) of executive action are to be provided for at all and, if so, the form that the external review process should take. These are considerations of policy that do not inform the particular question of law raised in the grounds of appeal.
92 There are three additional reasons for rejecting the appellant's argument.
93 First, Counsel for the appellant could not readily articulate the kind of error that must, on the appellant's construction of the Act, be identified by the Authority in order for it to lawfully interfere with a factual finding made by the original decision-maker. Counsel did not go so far as to say that the Authority is to be bound by the same principles of restraint that are to be observed by a court in the exercise of appellate powers (see, for example Robinson Helicopter Company Inc v McDermott [2016] HCA 22, (2016) 331 ALR 550 at [43]), and yet no alternative test for disturbing the Minister's findings of fact was postulated.
94 Second, the directions that may be given by the Authority upon remitting a decision for reconsideration are limited to those permitted by regulation. At the time of the Authority's decision to affirm the delegate's decision, the permissible range of directions was limited to those prescribed in reg 4.43 of the Regulations, extracted at [73] above. The Authority is to be assumed to have such powers as are necessary for the proper discharge of its functions, which include the function of considering whether to remit the decision for reconsideration in accordance with a direction that the appellant "must be taken to have satisfied the criteria for the visa that are specified in the direction". The power to give such a direction is one that, by necessary implication, includes a power to consider all of the issues arising on the material before the Authority that bear upon the question of whether the referred applicant satisfies either the Refugee Criterion or the Complementary Protection Criterion. The same may be said of the Authority's power to affirm the decision under review. In order to perform the function of considering whether the original decision should be affirmed, the Authority must be presumed to have such powers as are necessary to determine that an essential criterion is not fulfilled, whether for the same reasons furnished by the Minister or on the basis of alternative findings fairly open on the review material.
95 Third, if the appellant's argument were to be accepted, a case may arise in which the Minister makes a factual finding supporting a conclusion that the referred applicant does not fulfil an essential visa criterion, and yet the Authority could not disturb that finding if it preferred one of a number of alternative findings fairly open on the material before it. There is nothing in Pt 7AA to suggest that a referred applicant should not have the benefit of a favourable direction to the effect that he or she satisfies a visa criterion as a result of the Authority substituting its preferred view of the facts.