Mr Patrick vis a vis the relevant Minister, as they affect the Commissioner's decision making functions on a review.
63 In Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court explained the correct approach in determining the factual basis upon which the Administrative Appeals Tribunal was to determine issues arising on a merits review of an original decision made under s 303 of the Migration Act 1958 (Cth). The appellant challenged the Tribunal's decision on the basis that the Tribunal should have acted on the factual state of affairs existing at the time of the original decision, rather than at the time of the Tribunal's decision on the review.
64 Kiefel J (as her Honour then was) observed that the Tribunal's task was to reach its own conclusion as to the correct decision by independently assessing and deciding the matters necessary to be addressed, and that the exercise of its powers on review did not depend on the existence of error by the original decision-maker (at [141]). The same may be said of the Commissioner's task on review under Pt VII of the FOI Act.
65 Kiefel J said that in determining what was the right decision, the Tribunal must address the same question that the original decision-maker was to address (at [142]). Her Honour said (at [143]):
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.
(footnotes omitted)
66 Speaking as the President of the Tribunal, White J in Patrick v Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 considered whether a document subject to a request under the FOI Act fell within the exemption in s 34 relating to Cabinet documents. His Honour identified that the question involved a temporal element of the kind referred to by Kiefel J in Shi, the relevant point in time in that instance being the time that the document first came into existence. His Honour observed that a temporal criterion had also been found to exist in Waubra Foundation v Commissioner of Australian Charities and Not-for-profits Commission (2017) 107 ATR 60, such that the Tribunal was required to carry out its review by reference to the facts and circumstances pertaining at an earlier time. However, as his Honour explained, that did not mean that the
